KING SHOW GAMES, INC.

Patent Trials and Appeals Board

Jul 1, 2020

14015473 - (D) (P.T.A.B. Jul. 1, 2020)

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.
14/015,473 08/30/2013 Bradley BERMAN KSG.094.PAT1 6205
111805 7590 07/01/2020
King Show Games, INC.
10275 Wayzata Blvd.
Suite 300
Minnetonka, MN 55305
EXAMINER
DOSHI, ANKIT B
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
07/01/2020 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):
ip@ksg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRADLEY BERMAN
Appeal 2020-000067
Application 14/015,473
Technology Center 3700
Before STEFAN STAICOVICI, EDWARD A. BROWN, and
CHARLES N. GREENHUT, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as King Show Games,
Inc. Appeal Br. 2.
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Application 14/015,473
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CLAIMED SUBJECT MATTER
The claims are directed to a gaming device having multi-positional
game elements. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A gaming device comprising:
a game display for displaying game events;
a wager input device structured to receive physical items
associated with currency values;
a memory configured to store a credit amount;
a player interface device for receiving inputs related to the
game events; and
a processor configured to:
receive a signal from the wager input device indicating
receipt of a physical item associated with a currency value;
increase the credit amount stored in memory based on the
currency value associated with the received physical item;
receive a wager on a primary game event, the wager
decreasing the credit amount stored in the memory;
display an outcome of the primary game event on the game
display;
determine if a bonus game event is triggered;
when a bonus game event is triggered:
providing a plurality of six-sided game elements, selecting
a number of cards in a deck of cards for use in the bonus game
event, the number of selected cards corresponding to six times
the number of game elements provided, assigning each selected
card to one of the six positions of the game elements so that each
position of each game element is associated with a card,
randomizing the game elements to display one position of each
of the game elements, evaluating a poker hand created by the
displayed cards on the displayed positions of the game elements;
determining if a bonus terminating condition has been
received, and repeating the selection of cards, assignment of
cards to game elements, randomization of the game elements,
and evaluation steps until a bonus terminating condition has been
received; and
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provide awards associated with the primary game event
and bonus game event, where the credit amount stored in the
memory is increased by the provided awards.
REJECTION2
Claims 1–20 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to patent-ineligible subject matter. Final Act. 2–3.
OPINION
Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. See Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed to.”
Id. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).

2 The Examiner’s rejection under 35 U.S.C. § 103(a) has been withdrawn.
Adv. Act. Feb. 20, 2018.
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Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, at 219–20; Bilski, 561 U.S. at 611); mathematical
formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental
processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 192
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 184 n. 7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, at 221 (quotation marks omitted). “A claim that
recites an abstract idea must include ‘additional features’ to ensure ‘that the
[claim] is more than a drafting effort designed to monopolize the [abstract
idea].’” Id. ((alteration in the original) quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter “Memorandum”). Under Step
2A of that guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
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human activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP 3[1] § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look, in Step 2B, to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.

Analysis
The Examiner and Appellant have both selected claim 1 as
representative of the claims before us. Final Act. 2–5; App. Br. 11. We will
also do so. See 37 C.F.R. § 41.37(c)(1)(iv).
Neither Appellant nor the Examiner makes any distinctions between
device and method claims. Our reviewing court has made clear “the basic
character of a process claim drawn to an abstract idea is not changed by
claiming only its performance by computers, or by claiming the process
embodied in program instructions on a computer readable
medium.” See CyberSource Corp v. Retail Decisions, Inc. 654 F.3d 1366,
1375–76 (Fed. Cir. 2011) (citing In re Abele, 684 F.2d 902 (CCPA 1982)).

3[1] Manual of Patent Examining Procedure.
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Other than the basic componentry recited that can be found in nearly any
electronic wagering game device, including a display, a wager input device,
a memory, a player input device, and a processor, claim 1 predominantly
recites the acts each of those elements, particularly the processor, is
configured or operable to perform. Particularly in light of its broad and
functionally-defined nature, holding claim 1 necessarily passes muster under
§ 101 simply because it is an apparatus claim would “exalt form over
substance.” The fact that claims directed to a device were not at issue on
appeal in In re Smith, 815 F.3d 816 (Fed. Cir. 2016) (App. Br. 13) in no way
alters this analysis. This Board’s primary role is to review adverse decisions
of examiners. See Ex Parte Frye, 94 USPQ2d 1072, 1077 (BPAI 2010)
citing 37 C.F.R. § 41.50(a)(1) (“The Board, in its decision, may affirm or
reverse the decision of the examiner in whole or in part on the grounds and
on the claims specified by the examiner”). Although the Board is authorized
to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn
when the Board elects not to do so. See MPEP § 1213.02.
Appellant argues:
A careful review of claim 1 clearly indicates that the claim is
directed to a specific type of gaming device that is operable to
play a novel game using a unique combination of processes to
provide entertainment and excitement not found on any other
known gaming device.
App. Br. 12,4 However, the specifics which Appellant regards as “clearly
indicate[d]” are, to the best of our knowledge, not described in Appellant’s

4 See also App. Br 13 (“claim 1 is directed to a specific gaming device that is
operable to implement novel, non-obvious processes for a game that
provides an improved gaming device that is different from any other
previous gaming device”); App. Br. 14–15 (“the new novel claim elements
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briefing, or apparent from the claim language itself. “[T]he Board will not,
as a general matter, unilaterally review those uncontested aspects of the
rejection.” Frye at 1075–76 (citations omitted). Arguments must address the
Examiner’s action. 37 C.F.R. § 41.37(c)(1)(iv)(“The arguments shall explain
why the examiner erred as to each ground of rejection contested by
appellant”). The Board will not advocate for Appellants by scouring the
record to see if the Board can identify some flaw in the Examiner’s findings
of fact, articulated reasoning, or legal conclusions. See, e.g., Halliburton
Energy Services, Inc. v. M-I LLC, 514 F.3d 1244, 1250 n.2 (Fed. Cir. 2008)
(“A skeletal ‘argument’, really nothing more than an assertion, does not
preserve a claim…. Judges are not like pigs, hunting for truffles buried in
briefs.”) (citation omitted).
The only aspects of claim 1 argued with specificity are:
a wager input device structured to receive physical items
associated with currency values, and a processor operable to
receive a signal from the wager input device indicating that a
physical item associated with a currency value has been received,
increase the credit amount stored in the memory based on the
currency value of the received physical item, and receive a signal
to initiate a gaming activity in response to placement of a wager,
the wager decreasing the credit amount stored in the memory.
App. Br. 14. Appellant points out what the claim recites in this regard, but
does not go so far as to assert these elements are, alone or as part of an
ordered combination, anything beyond well-understood, routine, and
conventional aspects of generic gaming machines. Final Act. 4–5. Indeed,

of claim 1 provide a new gaming device that is different and a potential
improvement over conventional gaming devices. Hence, claim 1 is not
directed to patent-ineligible subject matter”)
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Appellant likely could not reasonably make such an assertion without
violation of rule 41.11(a) (“Duty of candor”).
Appellant’s Specification clearly and unequivocally touts one of the
benefits of computerized gaming apparatus as being easy reconfigured for
“[p]laying new games:”
Computer gaming devices can also be easily adapted to provide
entirely new games of chance that might be difficult to
implement using mechanical or discrete electronic circuits.
Because of the ubiquity of computerized gaming machines,
players have come to expect the availability of an ever wider
selection of new games when visiting casinos and other gaming
venues. Playing new games adds to the excitement of “gaming.”
Spec. p. 1, ll. 22–32. Thus, the Specification essentially admits that the
disclosed and claimed invention is directed to using a conventional device to
play a new game. It is conceivable that such activity could, in certain
circumstances, amount to “significantly more” or an “inventive concept” in
the context of a section 101 inquiry. Here, however, the purportedly novel
game is recited in the claim and described in the Specification only as a
series of abstract rules associated with the game’s play. See, e.g., Spec. p. 9,
(describing the indicia used); pp. 10–12 (describing the game rules); pp. 13,
16–18, 24–25 (describing the payout structure—so-called “financial
obligations” (see Alice, 573 U.S. at 217–18)). Put simply, Appellant’s
invention is directed to rules for playing a game. It is an idea that is conjured
up entirely in the human mind and then communicated to other persons
orally or in writing. Claim 1 is nothing more than a sequence of human
actions involving financial obligations performed in accordance with a
certain protocol or set of rules, and using conventional wagering apparatus.
Modifying a conventional gaming machine by changing the rules is purely
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an abstract idea that is not sufficient to amount to significantly more that the
abstract idea itself. In re Smith, 815 F.3d at 818.
CONCLUSION
The Examiner’s rejection is AFFIRMED.
DECISION SUMMARY
Claim(s) 35 U.S.C. § Basis/Reference(s) Affirmed Reversed
1 – 20 101 abstract idea 1 – 20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED