Ex Parte TANG

Patent Trial and Appeal Board

Apr 5, 2017

12469210 (P.T.A.B. Apr. 5, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/469,210 05/20/2009 Matthew TANG 3286-P12195US(PA4450.ap.U 1466
66137 7590 04/07/2017
TRASKBRITT, P.C. /Bally Gaming, Inc.
PO Box 2550
Salt Lake City, UT 84110
EXAMINER
DENNIS, MICHAEL DAVID
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
04/07/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
U S PTOMail @ traskbritt .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW TANG
Appeal 2015-006775
Application 12/469,210
Technology Center 3700
Before THOMAS F. SMEGAL, ERIC C. JESCHKE, and
BRENT M. DOUGAL, Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Matthew Tang (“Appellant”) seeks review under 35 U.S.C. § 134(a)
of the Examiner’s decision, as set forth in the Final Office Action dated
August 15, 2014 (“Final Act.”), and as further explained in the Advisory
Action dated October 23, 2014 (“Adv. Act.”), rejecting claims 1—21.1 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies Bally Gaming, Inc. as the real party in interest.
Appeal Br. 2.
Appeal 2015-006775
Application 12/469,210
BACKGROUND
The disclosed subject matter “relates to the general field of games of
chance and, more particularly, to improvements in the game of Asia Poker.”
Spec. 12. Claims 1 and 14 are independent. Claim 1 is reproduced below:
1. A method of administering a wagering game,
comprising:
accepting an ante wager from a player by
receiving a physical, monetarily valuable wagering
element in a first designated area on a playing
surface of a gaming table;
accepting an optional bonus wager from the
player by receiving another physical, monetarily
valuable wagering element in a second designated
area on the playing surface of the gaming table, the
second designated area being separate and distinct
from the first designated area;
dealing seven physical, randomized cards
from a deck comprising 52 standard playing cards
to each of the player and a dealer;
accepting the player’s arrangement of the
cards dealt to the player into a four-card high player
hand, a two-card medium player hand, and a one-
card low player hand or arranging the cards dealt to
the player into a four-card high player hand, a two-
card medium player hand, and a one-card low
player hand;
arranging the cards dealt to the dealer a four-
card high dealer hand, a two-card medium dealer
hand, and a one-card low dealer hand;
resolving the ante wager by comparing the
high player hand to the high dealer hand, the
medium player hand to the medium dealer hand,
and the low player hand to the low dealer hand;
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Application 12/469,210
paying a payout on the ante wager to the
player when two of the high player hand, medium
player hand, and low player hand outrank a
corresponding two of the high dealer hand, medium
dealer hand, and low dealer hand, respectively, by
physically transferring monetarily valuable
wagering elements to the player;
collecting an amount of the ante wager when
two of the high player hand, medium player hand,
and low player hand are outranked by a
corresponding two of the high dealer hand, medium
dealer hand, and low dealer hand, respectively, by
physically retrieving each wagering element
associated with the ante wager;
resolving the optional bonus wager by
comparing a seven-card player hand composed of
all cards dealt to the player to a set of predetermined
winning hands;
paying a payout on the optional bonus wager
to the player when a rank of the seven-card player
hand is the same as a rank of a predetermined
winning hand from the set of predetermined
winning hands by physically transferring
monetarily valuable wagering elements to the
player; and
collecting an amount of the optional bonus
wager when the rank of the seven-card player hand
is not the same as the rank of any predetermined
winning hand from the set of predetermined
winning hands by physically retrieving each
wagering element associated with the optional
bonus wager.
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Application 12/469,210
REJECTIONS
1. Claims 1—21 stand rejected under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter.
2. Claims 1, 2, 6, 10-15, and 18—21 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Tang (US 2007/0035091 Al,
published Feb. 15, 2007) and Snow (US 7,905,770 B2, issued Mar. 15,
2011).
3. Claims 3—5, 8, and 17 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Tang, Snow, and Webb (US 2007/0066376 Al,
published Mar. 22, 2007).
4. Claim 7 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Tang, Snow, and Lo (US 2005/0001378 Al, published
Jan. 6, 2005).
5. Claim 9 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Tang, Snow, and Perrie (US 2007/0170652 Al, published
July 26, 2007).
6. Claim 16 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Tang, Snow, and Admitted Prior Art.
DISCUSSION
Rejection 1 — The rejection of claims
1-21 under 35 U.S.C. § 101
Appellant argues the claims subject to this rejection as a group.
Appeal Br. 8—14. We select claim 1 as representative, with the remaining
claims standing or falling with claim 1. 37 C.F.R. § 41.37(c)(l)(iv) (2014).
The Supreme Court has set forth “a framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
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Application 12/469,210
from those that claim patent-eligible applications of those concepts.” Alice
Corp. v. CLS Bank Inti, 134 S.Ct. 2347, 2355 (2014) (citing Mayo
Collaborative Servs. v. Prometheus Labs, Inc., 132 S.Ct. 1289, 1294
(2012)). Under that framework, we first “determine whether the claims at
issue are directed to one of those patent-ineligible concepts”—i.e., a law of
nature, a natural phenomenon, or an abstract idea. Id. If so, we secondly
“consider the elements of each claim both individually and ‘as an ordered
combination’ to determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application. Id. (quoting Mayo,
132 S.Ct. at 1298, 1297). The Supreme Court has described the second step
of the analysis as “a search for an ‘inventive concept’—i.e., an element or
combination of elements that is ‘sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Id. (alteration in original) (quoting Mayo, 132 S.Ct. at
1294).
A. First Step
As to the first step under the Supreme Court’s framework, the
Examiner states that claim 1 is “directed to a method of administering a
wagering game, which is an abstract idea in the same way managing a game
of bingo is an abstract idea.” Ans. 2. Below, we address each of
Appellant’s four arguments regarding the first step.
First, Appellant argues that “[t]he claims are not ‘directed to’ the
identified idea of ‘a method of administering a wagering game’ because they
do not preempt all possible ‘method[s] of administering a wagering game.’”
Reply Br. 2. According to Appellant, “[t]he claims do not even preempt all
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possible implementations of the particular card games involved in the claims
and described in the specification.” Id.
In the discussion of preemption quoted in part by Appellant (see
Reply Br. 3), the Supreme Court stated that “patents that. . . integrate the
building blocks [of human ingenuity] into something more, [Jthereby
transforming them into a patent-eligible invention . . . pose no risk of pre­
emption, and therefore remain eligible for the monopoly granted under our
patent laws.” Alice, 134 S.Ct. at 2355—56 (citations and quotations omitted).
The concern regarding preemption is one, however, that “undergirds [the
Supreme Court’s] § 101 jurisprudence” overall {id. at 2358); it is not an
issue addressed in the first step of the analysis. Cf, e.g., DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1259 (Fed. Cir. 2014) (discussing
preemption in the context of the second step of the analysis). In other
words, in the first step of the analysis, the issue is not whether the claims
preempt all possible implementations of the identified abstract idea; rather,
the issue is “the ‘focus’ of the claims, their ‘character as a whole.’” Elec.
Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (quoting
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed. Cir. 2016) and
Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed.
Cir. 2015)). In contrast, the second step, when reached, looks “more
precisely at what the claim elements add.” Id. Here, we are not apprised of
error in the Examiner’s identification of what claim 1 is “directed to.”
Second, Appellant contends that “the claims are not ‘directed to’ the
identified idea because they involve inventive concepts that distinguish them
from the identified idea.” Reply Br. 3; see also Appeal Br. 10 (arguing that
“the claims recite a specific, particular, set of actions to be performed when
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administering a novel and nonobvious wagering game”). Appellant argues,
“[specifically, the claims require that an optional bonus wager be resolved
by comparing a seven-card hand composed of all cards dealt to the player be
compared to a set of predetermined winning hands, which is not anticipated
or rendered obvious by the prior art” and the claims also “require that the
novel and nonobvious bonus-wager-resolution mechanic be administered
utilizing physical objects, such as, for example, the table, layout, cards, and
chips.” Id. Appellant contends that “like the claims in DDR Holdings, the
ideas wrapped up in the claims represent an advance in the technical field of
wagering game administration, resulting in high payout awards for low
risked amounts and increased depth of play.” Appeal Br. 10 (citing DDR
Holdings, 773 F.3d at 1258; Spec. 139).
Here, Appellant asserts error in the first step of the analysis because
claim 1, for example, requires a certain set of actions more specific than the
identified abstract idea: “a method of administering a wagering game.” As
discussed above, however, in the first step of the analysis, one looks at “the
focus of the claims, their character as a whole.” Elec. Power, 830 F.3d at
1353 (quotations omitted). Moreover, the discussion in DDR Holdings
identified by Appellant relates to the second step of the analysis. Thus, this
argument does not show error in the first step of the analysis.2
Third, Appellant argues “[l]ike the claims in DDR Holdings, the
claims on appeal ‘do not recite a mathematical algorithm’; ‘[n]or do they
recite a fundamental economic or longstanding commercial practice.’”
Appeal Br. 10 (quoting DDR Holdings, 773 F.3d at 1257).
2 Below, we address a similar argument in Appellant’s first argument
regarding the second step of the analysis.
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As an initial matter, in DDR Holdings, the Federal Circuit did not
indicate that the possibilities listed represent the entire scope of possible
abstract ideas. See DDR Holdings, 773 F.3d at 1257. Moreover, in a
decision issuing after the briefing in this appeal, the Federal Circuit
addressed a § 101 rejection of claims directed to a “method of conducting a
wagering game.” In re Smith, 815 F.3d 816, 817 (Fed. Cir. 2016). There,
the court stated: “On the first step, we conclude that Applicants’ claims,
directed to rules for conducting a wagering game, compare to other
‘fundamental economic practice^]’ found abstract by the Supreme Court.”
Id. at 818. For these reasons, this argument does not apprise us of error in
the determination that claim 1 is directed to “a method of administering a
wagering game” and that that is an abstract idea. See Ans. 2; see also Smith,
815 F.3d at 819 (“[W]e conclude that the rejected claims, describing a set of
rules for a game, are drawn to an abstract idea.”).
Fourth, Appellant argues that “the ideas wrapped up in the claim are
recited as being physically implemented, such that they could not be
performed with the human mind.” AppealBr.il. Appellant states:
For example, the claims require (1) “a gaming table,” (2) “a
playing surface,” (3) “designated area[s]” for wagering that a[re]
“distinct” from one another, (4) “physical, monetarily valuable
wagering elements],” and (5) “physical, randomized cards from
a deck comprising 52 standard playing cards,” and recite the
particular positioning and movement of these physical elements
relative to one another during the various acts taken when
performing the methods, resulting in the ultimate redistribution
of monetary value.
Id.
“[A] method that can be performed by human thought alone is merely
an abstract idea and is not patent-eligible under § 101.” CyberSource Corp.
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v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011). It does not
logically follow, however, that methods involving at least one physical
object—i.e., that arguably cannot be performed entirely in the human
mind—are therefore not directed to abstract ideas. For example, in In re
Smith, the recited method “describing a set of rules for a game” was “drawn
to an abstract idea” despite, for example, including the step of a “dealer
providing at least one deck of. . . physical playing cards and shuffling the
physical playing cards.” Smith, 815 F.3d at 819, 817. Thus, we are not
apprised of error based on Appellant’s fourth argument regarding the first
step of the analysis.
B. Second Step
We turn now to the second step under the Supreme Court’s
framework, regarding which the Examiner states:
The claim(s) does/do not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because the use of cards and card table, when
considered separately and in combination, do not add
significantly more to the abstract idea. Specifically, claims 1—21
include physical cards, gaming table with surface and designated
areas and physical, monetarily valuable wagering elements (i.e.
wager tokens). These are traditional and known wagering game
structures. They do not add significantly more to the abstract
idea of game steps for a wagering game.
Ans. 2—3.
Below, we address each of Appellant’s three arguments regarding the
second step of the analysis.
First, Appellant argues that “claims 1 through 21 recite significantly
more than an abstract idea because they involve improvements to the
technical field of wagering game administration and involve unconventional
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actions that confine the claim to the particular useful application of a live,
dealer-administered, table game.” Appeal Br. 12. Specifically, Appellant
contends that “the wagering game involved in claims 1 through 21 is a novel
and nonobvious modification of Asia Poker adding a unique side wager
against a pay table in a live, dealer-administered, table game format.” Id.
Even assuming that claim 1 is “a novel and nonobvious modification,”
as the Supreme Court has stated, “[t]he ‘novelty’ of any element or steps in a
process, or even of the process itself, is of no relevance in determining
whether the subject matter of a claim falls within the § 101 categories of
possibly patentable subject matter.” Diamond v. Diehr, 450 U.S. 175, 188—
89 (1981). Thus, we are not apprised of error based on this argument.
Second, Appellant argues that “claims 1 through 21 recite particular
apparatuses that are required to perform the claimed method steps,” relying
on the same examples provided for the fourth argument regarding the first
step of the analysis. Appeal Br. 12. In support, Appellant states “[wjhen a
claim requires implementation using one or more particular apparatuses, the
claim recites patent-eligible subject matter.” Id. (citing Bilski v. Kappos,
561 U.S. 593, 602 (2010)). Appellant argues that “the physical instantiation
of these elements, such that the method is tangibly implemented, weighs in
favor of patent-eligibility.” Id. (citing MPEP § 2106(II)(B)(l)(d)).
Appellant contends that “physical gambling equipment, physical betting
areas, specific types of physical playing cards, and the transfer of monetary
value in connection with wagers render the subject matter of a claim patent-
eligible.” Id. at 13.
We are not apprised of error based on this argument. Although the
machine-or-transformation test remains a “useful and important clue ... for
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determining whether some claimed inventions are processes under § 101,”
the “machine” prong requires the process to be “tied to a particular machine
or apparatus.” Bilski, 561 U.S. at 604, 602 (emphasis added). Here,
Appellant has not shown error in the Examiner’s position that “physical
cards, gaming table with surface and designated areas and physical,
monetarily valuable wagering elements (i.e. wager tokens),” as generally
required by claim 1, are “traditional and known wagering game structures.”
Ans. 2—3. Appending such routine and conventional steps to an abstract
idea—here, the rules of a specific variation of poker—does not transform
that abstract idea to patent-eligible subject matter. See Alice, 134 S.Ct. at
2359-60.
For example, Appellant argues that “explicitly requiring that a deck of
cards be used when administering a wagering game, such as when dealing
cards, manipulating cards, and resolving wagers, may not be ignored when
evaluating whether a claim is tied to a particular machine or apparatus.”
Reply Br. 4; see also Appeal Br. 13 (arguing that, inter alia, “specific types
of physical playing cards . . . render the subject matter of a claim patent-
eligible”). As to cards required, however, claim 1 merely recites “dealing
seven physical, randomized cards from a deck comprising 52 standard
playing cards to each of the player and a dealer.” Appeal Br. 25 (Claims
App.) (emphasis added). Addressing similar facts in In re Smith, the Federal
Circuit stated that “shuffling and dealing a standard deck of cards are ‘purely
conventionaF activities.” Smith, 815 F.3d at 819.3
3 As to Appellant’s reliance on various nonprecedential decisions by
this tribunal (see Appeal Br. 13; Reply Br. 3—4), we are not bound by those
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Third, Appellant argues that we should not follow the decision in Ex
parte Moody, No. 2012-011691, 2014 WL 7330652 (PTAB Dec. 23, 2014).* 4
Appellant contends that “the outcome reached in Moody should not be
followed in this appeal because the outcome is at odds with the patent statute
and Supreme Court precedent” and because “the claims on appeal are
distinguishable from the claims rejected in Moody.” Appeal Br. 13, 14. We
need not rely on the nonprecedential decision in Ex parte Moody because
binding precedent from the Federal Circuit supports the Examiner’s
positions. See Smith, 815 F.3d at 817—20.
For the reasons above, we sustain the rejection of claim 1 under
35 U.S.C. § 101 as directed to patent-ineligible subject matter. Claims 2—21
fall with claim 1.
Rejection 2 — The rejection of claims 1, 2, 6, 10—15,
and 18—21 under 35 U.S.C. § 103(a)
Independent claims 1 and 14 both recite a “method of administering a
wagering game, comprising,” among other steps: (1) “accepting an optional
bonus wager from the player” and (2) “resolving the optional bonus wager
by comparing a seven-card player hand composed of all cards dealt to the
player to a set of predetermined winning hands.” Appeal Br. 25—26, 29-30
(Claims App.).5 The Examiner finds that Tang does not disclose these steps
but that Snow “discloses such features to be known in the art.” See Final
Act. 5—6.
decisions.
4 As noted by Appellant, the claim at issue in Moody related to “a
method of playing a poker card game.” Appeal Br. 13; see also Moody,
2014 WL 7330652, at *1.
5 We refer to the second of these steps as the “resolving” step.
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Appellant argues that “Snow teaches accepting an optional bonus side
game bet, resolving the bonus side game bet by comparing a best five-card
hand from the player’s seven cards to a pay table, and paying a payout when
the player holds a five-card hand of a minimum rank or higher.” Appeal Br.
16 (citing Snow, col. 7,11. 3—5, 15—19, 29-43). Appellant states, “[i]n other
words, the bonus side game bet taught in Snow does not involve comparing
a seven-card hand composed of all cards dealt to the player to a set of
predetermined winning hands, as required by claim 1, because only five of
the seven cards are used.” Id. We agree.
Snow discloses an “optional or mandatory bonus game side bet
wager” (col. 7,11. 4—5), but discloses that resolving that wager involves
players “examin[ing] their seven cards and creating] a best five-card poker
hand” (col. 7,11. 17—18) before “comparing their best five-card poker hand]
to the pay table” (col. 7,11. 44-45). Thus, Snow discloses each player
“examining” their seven-card hand, but only “comparing” a five-card hand
to a pay table. See also Snow, col. 7,11. 33—42 (showing an exemplary table
of “BEST 5-CARD HAND[S]”). The Examiner takes the position that these
teachings satisfy the “resolving” step. Specifically, the Examiner states:
Appellant overlooks that examiner is merely combining the
following feature from secondary reference Snow: comparing a
seven-card player hand composed of all cards dealt to the player
to a set of predetermined winning hands. Importantly, Snow
expressly discloses ‘the players . . . would then examine their
seven cards’ to resolve the bonus wager against a set of
predetermined winning hands.
Ans. 12 (citing Snow, col. 7,11. 17—18).
The Examiner has not provided sufficient support to demonstrate that
the broadest reasonable construction of “comparing a seven-card hand” in
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the “resolving” step includes “examining] their seven cards,” as disclosed in
Snow. Snow, col. 7,11. 17—18; see also Adv. Act. 2 (“In the instant case,
Snow expressly teaches that the 7 card [hand] is examined to determine a
best poker rank. This reads on ‘comparing a seven card hand composed of
all cards dealt to the player.’”). Notably, Snow uses the word “compared”
when describing the process involving each five-card hand and the pay table,
but uses the word “examine” when describing the process of “creating] a
best five-card poker hand” from a seven-card hand. Thus, Snow discloses
that the two cards from each player’s hand not selected for their “best five-
card poker hand” are not “compared ... to the pay table.” See Snow, col. 7,
11. 44-45; see also Appeal Br. 16 (“Claims 1 and 14 do not merely conclude
after reciting that the seven card hand composed of all cards dealt to the
player is ‘compared’ in the abstract. Rather, claims 1 and 14 require that the
seven card hand composed of all cards dealt to the player be compared “to a
set of predetermined winning hands.’”).
Thus, we do not agree with the Examiner’s finding that Snow teaches
“comparing a seven-card player hand composed of all cards dealt to the
player to a set of predetermined winning hands,” as recited in claims 1 and
14. See Ans. 12 (“Appellant overlooks that examiner is merely combining
the following feature from secondary reference Snow: comparing a seven-
card player hand composed of all cards dealt to the player to a set of
predetermined winning hands.”).
In a discussion added to the rejection with the Answer, the Examiner
takes an alternate position that the “resolving” step is satisfied by the
combination of Snow and Tang. Compare Ans. 5—7, with Final Act. 5—6.
Specifically, the Examiner relies on Snow as teaching “resolving the
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optional bonus wager by comparing the player’s hand, composed of all cards
dealt to the player to a set of predetermined winning hands” and relies on
Tang and Snow as teaching “wherein 7 total cards are dealt to the player
hand.” Ans. 6—7 (citing Snow, col. 7). To the extent the Examiner, in this
alternate position, again relies on Snow’s teaching of “compar[ing their best
five-card poker hand] to the pay table” (col. 7,11. 44^45), for the reasons
discussed above, those five-card hands are not “composed of all cards dealt
to the player” as set forth in the Examiner’s findings. See Ans. 6.
For these reasons, we do not sustain the rejection of independent
claims 1 and 14, and also do not sustain the rejection of claims 2, 6, and 10-
13 (which depend from claim 1) or claims 15 and 18—21 (which depend
from claim 14).
Rejections 3 through 6 — The rejections of claims 3—5,
7—9, 16, and 17 under 35 U.S.C. § 103(a)
Claims 3—5 and 7—9 depend from claim 1, and claims 16 and 17
depend from claim 14. Appeal Br. 26—28, 31 (Claims App.). The
Examiner’s reliance on Webb (regarding Rejection 3), Lo (regarding
Rejection 4), Perrie (regarding Rejection 5), and Admitted Prior Art
(regarding Rejection 6) does not remedy the deficiencies in the combined
teachings of Tang and Snow, discussed above (see supra Rejection 2).
Thus, for the same reasons discussed above, we do not sustain the rejection
of claims 3—5, 7—9, 16, and 17.
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DECISION
We AFFIRM the decision to reject claims 1—21 under 35 U.S.C. § 101
and REVERSE the decision to reject claims 1—21 under 35 U.S.C. § 103(a).6
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
6 See 37 C.F.R. § 41.50(a)(1) (“The affirmance of the rejection of a
claim on any of the grounds specified constitutes a general affirmance of the
decision of the examiner on that claim, except as to any ground specifically
reversed.”).
16