DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Applicant argues that the claimed invention can not be practically performed in the mind, however Applicant’s only reasons for why such can not be performed in the mind is
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
1. Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Under Step 1 of the analysis, it is noted that the claims are directed towards eligible categories of subject matter
3. Step 2A:
4. Under Step 2A, the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea). The claims are directed to the abstract ideas of a mental process as well as a method of organizing human activity and a series of mental processes.
5. The claim language recites the steps of collecting playing card information outputted by a gaming machine, collecting game delay information, analyzing said playing cards to determine if a winning hand is possible, and subsequently outputting a new round of video poker if the previous hand was determined not to be a winning hand., thus reducing the delay in between the rounds. These steps mirror that which can be completed by a dealer at a card table. Dealers routinely analyze dealt cards to determine a particular potential winning hand or a hand that requires initiating adding additional cards to the hand based on a particular number. For example, the game of blackjack includes a hard 17 and a soft 17 whereby a dealer adds a card to the hand based on the number. Here, similar rules are being followed whereby players can add hand totals to determine further courses of action. A dealer or a game administrator, at a card table can perform the card game of the instant application by drawing and dealing cards, and determine potential winning hands and informing the player of their options, and prevent the player from performing subsequent actions similar to what a dealer does when a player’s hands total more than 21 in a game of blackjack. For those reasons the games represent both a method of organizing human activity in the form of organizing and playing a game, and a series of mental processes in the form of game rules. Additionally, the claims are also directed towards a mental process as the claims represent collecting information in the form of card data, analyzing card data, and outputting said analysis in the form of a new hand. Such represents the mental process of collecting information, analyzing information, and displaying the result as discussed in MPEP 2106 and the Court of Electric Power Grid. Also the inclusion of a delay in between rounds is another step in the abstract idea. The instant application states that players can be incentivized to select a shorter delay between rounds, by offering higher award tables. Paragraph 0077 states “In order to incentivize the player to play rapidly, the paytable could vary according to how fast the games are played.” Thus, including a game delay in between game rounds is method of organizing human activity in the form of managing a game, and also a mental process regarding the particular game rules.
The second prong of Step 2A, ask whether the claims recite additional elements that would integrate the abstract idea into a practical application. Here, no such practical application exists. The game delay was introduced by Applicant and is not a normal part of video game poker. Paragraph [0079] even states that the player can select how long the game delay is. Thus, reducing the delay in between the game was not a problem longstanding in computer history, and thus lack practical application. Additionally, there is no practical application as there is no particular machine that is used to implement the claim language, but instead and as will be discussed below only generic computers are used to perform the invention. Also, there is no transformation of the machine used in the application into a different state or thing. Lastly, the claims do not attempt to apply the abstract idea in a meaningful way beyond simply using the claimed machine.
7. Step 2B asks whether a claimed invention which fails Step 2A contains an inventive concepts, i.e. significantly more. Here the invention does not recite significantly more than a generic computer with generic computer components including a processor, input, display, and memory that are well-known and understood within the art. The claim is directed to an abstract idea that lacks significantly more and thus is not patent eligible.
Response to Arguments
Applicant's arguments filed 02/05/2026 have been fully considered but they are not persuasive. Applicant begins their arguments by stating that the claims can not be practically performed in the mind, wherein Applicant states “A human dealer cannot perform, practically, in his or her mind, the function of a processor controlling display timing and game initiation sequences on an electronic gaming device.” However, such is a mischaracterization of the issue at hand. The issue is whether, the claims presents an abstract idea that uses a computer as a tool to perform the abstract idea or whether the claims are intrinsically tied to the computer in such a manner that the two cannot be separated. The former is the correct approach as the claims present a card game wherein if a portion of a card hand and a portion of non-presented cards, can not make a winning hand, then the game is terminated and a new round of play begins. However, as previously stated, a game administer or dealer can perform these actions. Applying the abstract idea to the computer is only using the computer as a tool for performing the role of the dealer. Applicant is asking that the claims only be viewed as presented which is a computerized version of the abstract idea, however if this was the held viewpoint by the Court then all games and most software operated on computers would be considered patent eligible subject matter. As for arguments regarding the claims reflecting a method of organizing human activity, the game machine is still providing rules for playing a game which was upheld in In re Marco Guldenaar as a method of organizing human activity, wherein the Court stated “We find that the claims are drawn to the abstract idea of rules for playing a dice game and lack an “inventive concept” sufficient to “transform” the claimed subject matter into a patent-eligible application of that idea.” Thus, because Examiner has concluded that Applicant’s claims present rules for a game which is reflected in the language of the instant application stating, “initiating a game,” then the claims deemed to be an abtract idea under a method of organizing human activity. Applicant argues that the claims do not present a winner, however the language of the claim determines what is considered a winning hand, or in other words if a player has won the game.
Applicant argues that as amended the claims provide a practical application, however the claims only further recite a generic computing device that performs instructions for performing a game. Additionally, the claims do not provide an improvement to computer technology but only merely provide rules for performing a game. Lastly, as stated above, the claims also do not present significantly more than a generic computing device.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REGINALD A RENWICK whose telephone number is (571)270-1913. The examiner can normally be reached Monday-Friday 11am-7pm.
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REGINALD A. RENWICK
Primary Examiner
Art Unit 3714
/REGINALD A RENWICK/Primary Examiner, Art Unit 3715
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