DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Status
After the amendments filed 04/24/2026, claims 2-3, 5-8, 11-20 and 22-23 remain pending, of which 2, 5, 20, and 22 were amended.
Double Patenting
The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 2-3, 5-8 and 11-21 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-18 and 24 of U.S. Patent No. 11,244,539. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations claimed within the current claims are already covered by the patented claims. Examiner has produced a comparison below between the patented claims and the current pending claims.
US 11,244,539
Current Claims
1. 1. A method comprising: in response to receiving a request to play a series of games on behalf of a player initiated at a mobile computing device, making, by a computing device, a plurality of respective decisions, in which each of the plurality of respective decisions is made at a respective intermediate point in a different one of a plurality of games in the series of games for the player without input, within the series of games, from the player; determining, by the computing device, for each game of the plurality of games, a respective final outcome based on a respective intermediate point in that game and a respective decision made for that game out of the plurality of respective decisions; in response to determining that a second intermediate point of a second game in the series of games satisfies one or more criteria, soliciting, by the computing device and from the player, a second decision to be made by the player in the second game, in which the soliciting includes providing an alert through the mobile computing device, in which the one or more criteria includes a chance for a payout from resuming play of the second game from the second intermediate point is above a threshold chance, in which the payout is above a first payout threshold other than zero, and in which the first payout threshold exceeds a product of a multiplier greater than one and an amount wagered; and determining, by the computing device, a second final outcome of the second game based on a result of soliciting the second decision from the player.
2. The method of claim 1, comprising receiving, by the computing device, the request to play the series of games.
3. The method of claim 1, comprising determining, by the computing device, that the second intermediate point satisfies the one or more criteria.
4. The method of claim 1, comprising receiving, by the computing device, a decision from the player in response to soliciting the player and using the decision to determine the second final outcome.
5. The method of claim 1, comprising determining whether to use at least one of an optimal strategy or a non-optimal strategy during the plurality of games when making the respective decisions at the respective intermediate points, without input from the player, according to a set strategy.
6. The method of claim 5, in which determining to use the at least one of the optimal strategy or the non-optimal strategy includes making a random selection of the at least one of the optimal strategy or the non-optimal strategy from a set of possible strategies.
7. The method of claim 1, in which the second intermediate point includes a condition of a game.
8. The method of claim 7, in which the condition includes at least one of a card dealt, a dice value rolled, a card discarded, a visible card, a slot symbol, a number selected, a wagered amount, or an available option.
9. The method of claim 1, in which the games include a blackjack game.
10. The method of claim 1, comprising: following a strategy selected by the player to play the series of games.
11. The method of claim 1, in which the one or more criteria includes the second intermediate point being associated with two or more possible decisions that lead to same expected winnings for the player.
12. The method of claim 1, in which the one or more criteria includes the second intermediate point being associated with a wager amount above a non-zero threshold if a selected strategy for playing the second game is followed.
13. The method of claim 1, in which the one or more criteria includes the second intermediate point that will result in the second final outcome being a winning result regardless of the second decision.
14. The method of claim 1, in which the one or more criteria includes a criterion selected by the player.
15. The method of claim 1, in which the one or more criteria includes a criterion regarding a sequence of game-related outcomes.
16. The method of claim 15, in which the game-related outcomes include at least one of a number of winning outcomes or a number a number of losing outcomes.
17. The method of claim 1, in which the alert indicates an amount of time that the player has to provide an input before automatic play of the series of games is resumed.
18. The method of claim 1, comprising: after making each respective decision in the plurality of games, providing the player an option to alter the respective decision.
24. An apparatus comprising: a computing device operable to execute a set of instructions; and a non-transitory medium having stored thereon the set of instructions, in which the set of instructions, when executed by the computing device, causes the apparatus to: in response to receiving a request to play a series of games on behalf of a player initiated at a mobile computing device, make a plurality of respective decisions, in which each of the plurality of respective decisions is made at a respective intermediate point in a different one of a plurality of games in the series of games for the player without input, within the series of games, from the player; determine, for each game of the plurality of games, a respective final outcome based on a respective intermediate point in that game and a respective decision made for that game out of the plurality of respective decisions; in response to determining that a second intermediate point of a second game in the series of games satisfies one or more criteria, solicit, from the player, a second decision to be made by the player in the second game, in which the soliciting includes providing an alert through the mobile computing device, in which the one or more criteria includes a chance for a payout from resuming play of the second game from the second intermediate point is above a threshold chance, in which the payout is above a first payout threshold other than zero, in which the first payout threshold exceeds a product of a multiplier greater than one and an amount wagered; and determine a second final outcome of the second game based on a result of soliciting the second decision from the player.
2. A method comprising:
controlling, by at least one processor:
in response to receiving a request to play a series of games on behalf of a player initiated at a mobile computing device, making a plurality of respective decisions, in which each of the plurality of respective decisions is made at a respective intermediate point in a different one of a plurality of games in the series of games for the player without input, within the series of games, from the player;
determining, for each game of the plurality of games, a respective outcome based on a respective intermediate point in the each game and a respective decision made for the each game out of the plurality of respective decisions;
in response to determining that a second intermediate point of a second game in the series of games satisfies one or more criteria, soliciting, through the mobile computing device, a second decision to be made by the player in the second game, in which the one or more criteria includes a chance for a payout from resuming play of the second game from the second intermediate point is above a threshold chance, in which the payout is above a first payout threshold other than zero, and in which the first payout threshold exceeds a product of a multiplier greater than one and an amount wagered; and
determining a second outcome of the second game based on the second decision.
3. The method of claim 2, further comprising: controlling, by the at least one processor: receiving the request to play the series of games.
4. The method of claim 2, further comprising: controlling, by the at least one processor: determining that the second intermediate point satisfies the one or more criteria.
5. The method of claim 2, further comprising: controlling, by the at least one processor: receiving a decision from the player in response to soliciting the player and using the decision to determine the second outcome.
6. The method of claim 2, further comprising: controlling, by the at least one processor: determining whether to use at least one of an optimal strategy or a non-optimal strategy during the plurality of games when making the respective decisions at the respective intermediate points, without input from the player, according to a set strategy.
7. The method of claim 6, in which determining whether to use the at least one of the optimal strategy or the non-optimal strategy includes making a random selection of the at least one of the optimal strategy or the non-optimal strategy from a set of possible strategies.
8. The method of claim 2, in which the second intermediate point includes a condition of a game.
9. The method of claim 8, in which the condition includes at least one of a card dealt, a dice value rolled, a card discarded, a visible card, a slot symbol, a number selected, a wagered amount, or an available option.
10. The method of claim 2, in which the games include a blackjack game.
11. The method of claim 2, further comprising: controlling, by the at least one processor: following a strategy selected by the player to play the series of games.
12. The method of claim 2, in which the one or more criteria includes the second intermediate point being associated with two or more possible decisions that lead to same expected winnings for the player.
13. The method of claim 2, in which the one or more criteria includes the second intermediate point being associated with a wager amount above a non-zero threshold if a selected strategy for playing the second game is followed.
14. The method of claim 2, in which the one or more criteria includes the second intermediate point that will result in the second outcome being a winning result regardless of the second decision.
15. The method of claim 2, in which the one or more criteria includes a criterion selected by the player.
16. The method of claim 2, in which the one or more criteria includes a criterion regarding a sequence of game-related outcomes.
17. The method of claim 16, in which the game-related outcomes include at least one of a number of winning outcomes or a number a number of losing outcomes.
18. The method of claim 2, in which the soliciting includes providing an alert through the mobile computing device indicating an amount of time that the player has to provide an input before automatic play of the series of games is resumed.
19. The method of claim 2, further comprising: controlling, by the at least one processor: after making each respective decision in the plurality of games, providing the player an option to alter the respective decision.
20. An apparatus comprising:
at least one processor configured to control:
in response to receiving a request to play a series of games on behalf of a player initiated at a mobile computing device, making a plurality of respective decisions, in which each of the plurality of respective decisions is made at a respective intermediate point in a different one of a
plurality of games in the series of games for the player without input, within the series of games, from the player;
determining, for each game of the plurality of games, a respective outcome based on a respective intermediate point in the each game and a respective decision made for the each game out of the plurality of respective decisions;
in response to determining that a second intermediate point of a second game in the series of games satisfies one or more criteria, soliciting, through the mobile computing device, a second decision to be made by the player in the second game, in which the one or more criteria includes a chance for a payout from resuming play of the second game from the second intermediate point is above a threshold chance, in which the payout is above a first payout threshold other than zero, and in which the first payout threshold exceeds a product of a multiplier greater than one and an amount wagered; and
determining a second outcome of the second game based on the second decision.
21. A non-transitory storage medium configured to store instructions which, when executed by at least processor, control:
in response to receiving a request to play a series of games on behalf of a player initiated at a mobile computing device, making a plurality of respective decisions, in which each of the plurality of respective decisions is made at a respective intermediate point in a different one of a plurality of games in the series of games for the player without input, within the series of games, from the player;
determining, for each game of the plurality of games, a respective outcome based on a respective intermediate point in the each game and a respective decision made for the each game out of the plurality of respective decisions;
in response to determining that a second intermediate point of a second game in the series of games satisfies one or more criteria, soliciting, through the mobile computing device, a second decision to be made by the player in the second game, in which the one or more criteria includes a chance for a payout from resuming play of the second game from the second intermediate point is above a threshold chance, in which the payout is above a first payout threshold other than zero, and in which the first payout threshold exceeds a product of a multiplier greater than one and an amount wagered; and
determining a second outcome of the second game based on the second decision.
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.
Claims 2-3, 5-8, 11-20 and 22-23 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. The claims are directed to at least one of abstract idea groupings, according to the 2019 Revised Patent Subject Matter Guidelines (Mathematical Concepts, Mental Processes and/or Certain Methods of Organizing Human Activity). Further, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception as discussed below.
Step 1 of the 2019 Revised Patent Subject Matter Eligibility Guidance
More specifically, regarding Step 1 of the 2019 Revised Patent Subject Matter Eligibility Guidance, the claims are directed to a system and/or process, which is are statutory categories of invention.
Step 2A-1 of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims are analyzed to determine whether it is directed to a judicial exception.
Independent claim 2 recites the following, with the abstract ideas highlighted in bold, including an indication as to the abstract idea grouping(s) to which the indicated limitations belong to, according to the 2019 Revised Patent Subject Matter Guidelines. Independent claims 20 and 22, having substantially similar features, were also analyzed and to which the following conclusion is also applicable:
2. A method comprising:
controlling, by at least one processor:
in response to receiving a request to play a series of games on behalf of a player initiated at a mobile computing device, automating a plurality of respective decisions, in which each of the plurality of respective decisions is made at a respective intermediate point in a different one of a plurality of games in the series of games for the player without input, within the series of games, from the player, wherein the games comprise video poker (Certain Methods of Organizing Human Activity);
determining, for each game of the plurality of games, a respective outcome based on a respective intermediate point in each game and a respective decision made for each game out of the plurality of respective decisions (Certain Methods of Organizing Human Activity);
in response to determining that a second intermediate point of a second game in the series of games satisfies one or more criteria while automating the plurality of respective decision, interrupting the automating of the plurality of respective decisions and prompting, through the mobile computing device, the player to provide a second decision via user input in the second game, in which the one or more criteria includes a chance of attaining a hand having a payout from resuming play of the second game from the second intermediate point is above a threshold chance, in which the payout is above a first payout threshold other than zero, and in which the first payout threshold exceeds a product of a multiplier greater than one and an amount wagered (Certain Methods of Organizing Human Activity), wherein determining that the second intermediate point of the second game in the series of games satisfies the one or more criteria comprises conducting a Monte Carlo Simulation (Certain Methods of Organizing Human Activity);
determining a second outcome of the second game based on the second decision (Certain Methods of Organizing Human Activity); and
resuming automating the plurality of respective decisions after receiving the user input (Certain Methods of Organizing Human Activity);
wherein the prompting comprises the at least one processor transmitting an alert signal over a communication network to the mobile computing device, the alert signal causing the mobile computing device to generate a haptic vibration alert, thereby notifying the player to provide the second decision via user input.
The limitations in claim 2 (and similarly claims 20 and 22) recite an abstract idea included in the groupings of Certain Methods of Organizing Human Activity, connected to technology only through application thereof using generic computing elements (e.g., a processor, a mobile computing device, etc.) and/or insignificant extra-solution activity. According to the 2019 Revised Patent Subject Matter Guidelines:
Certain Methods of Organizing Human Activity include:
1. Fundamental Economic Principles or Practices (including hedging (i.e., wagering), insurance, mitigating risk);
2. Commercial or Legal Interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations);
3. Managing Personal Behavior or Relationships or Interactions Between People (e.g., social activities, teaching, and following rules or instructions). The interaction encompasses both activity of a single person (for example a person following a set of instructions) and activity that involves multiple people (such as a commercial or legal interaction). Thus, some interactions between a person and a computer (for example a method of anonymous loan shopping that a person conducts using a mobile phone) may fall within this grouping.
Specifically, the instant claims include functions/limitations, as highlighted in the independent claim above, that constitute at least:
A. Wagering (e.g., “in response to receiving a request to play a series of games on behalf of a player”, “an amount wagered”, Also, See Specification ¶418, wherein “The player at the remote terminal may authorize the remote device to make decision in a game on his behalf. The player may, for example, type in his initials to indicate that he is authorizing the terminal to make game decisions on his behalf”), which is a form of hedging, which is an abstract idea included in the grouping of Fundamental Economic Principles or Practices. These limitations are interpreted as at least Fundamental Economic Principles or Practices insomuch as the claim limitations are directed to performing the Fundamental Economic Principles or Practices while only generically connected to interaction with a computer utilizing non-special purpose generic computing elements and/or insignificant extra-solution activity as set forth in the claims.
B. Formation of a gambling contract (i.e., by a player placing a wager the player is entering into a contract with a game operator), which is an abstract idea included in the grouping of Commercial or Legal Interactions. These limitations are interpreted as at least Commercial or Legal Interactions insomuch as the claim limitations are directed to performing the Commercial or Legal Interactions while only generically connected to interaction with a computer utilizing non-special purpose generic computing elements and/or insignificant extra-solution activity as set forth in the claims; and/or
C. Following rules and/or instructions, such as including the functions related to the playing of a game (e.g., “the player to provide a second decision via user input in the second game”), which is an abstract idea included in the grouping of Managing Personal Behavior or Relationships or Interactions Between People. These sets of rules are interpreted as at least certain methods of organized human activity insomuch as the claim limitations are directed to performing or following the set of rules or instructions concerning a game while only generically connected to interaction with a computer utilizing non-special purpose generic computing elements and/or insignificant extra-solution activity, as set forth in the claims.
Regarding dependent claims 3, 5-8, 11-19 and 23:
Each claim is dependent either directly or indirectly from the independent claim identified above and includes all the limitations of said independent claim. Therefore, each dependent claim recites the same abstract idea as identified above. Each of the dependent claim further describes additional aspects of the abstract idea, i.e., additional aspects to the Mental Processes and/or Certain Methods of Organizing Human Activity. For example, some dependent claims merely provide additional Mental Processes and/or Certain Methods of Organizing Human Activity to be performed and/or additional insignificant extra-solution activity, without anything more significant to establish eligibility under 35 U.S.C. 101.
Step 2A-2 of the 2019 Revised Patent Subject Matter Eligibility Guidance
The second prong of step 2a is the consideration if the claim limitations are directed to a practical application.
Limitations that are indicative of integration into a practical application:
-Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
-Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
-Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
-Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
-Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP 2106.05(e) and Vanda Memo
Limitations that are not indicative of integration into a practical application:
-Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f)
-Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
-Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
Claims 2-3, 5-8, 11-20 and 22-23 clearly do not improve the functioning of a computer, as they only incorporate generic computing elements, do not effect a particular treatment, and do not transform or reduce a particular article to a different state or thing. Similarly, there is no improvement to a technical field. In addition the claims do not apply the judicial exception with, or by use of a particular machine. The claims do not apply or use the judicial exception in a meaningful way. The claimed invention does not suggest improvements to the functioning of a computer or to any other technology or technical field (see MPEP 2106.05 (a)).
This judicial exception is not integrated into a practical application because the claimed invention merely applies the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform the abstract idea (MPEP 2106.05 (f)) and/or generally links the use of the judicial exception to a particular technology or field of use (MPEP 2106.05 (h)). The claimed computer components are recited at a level of generality and are merely invoked as tool to perform the abstract idea. Simply implementing the abstract idea on a generic computer is not a practical application of the abstract idea.
For the reasons as discussed above, the claim limitations are not integrated to a practical application.
Step 2b of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims as a whole are analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because no element or combination of elements is sufficient to ensure any claim of the present application as a whole amounts to significantly more than one or more judicial exceptions, as described above. For example, the recitations of utilization of “a processor, a mobile computing device”, etc. used to apply the abstract idea merely implements the abstract idea at a low level of generality and fail to impose meaningful limitations to impart patent-eligibility. These elements and the mere processing of data using these elements do not set forth significantly more than the abstract idea itself applied on general purpose computing devices. The recited generic elements are a mere means to implement the abstract idea. Thus, they cannot provide the “inventive concept” necessary for patent-eligibility. “[I]f a patent’s recitation of a computer amounts to a mere instruction to ‘implement]’ an abstract idea ‘on ... a computer,’... that addition cannot impart patent eligibility.” Alice, 134 S. Ct. at 2358 (quoting Mayo, 132 S. Ct. at 1301). As such, the significantly more required to overcome the 35 U.S.C. 101 hurdle and transform the claimed subject matter into a patent-eligible abstract idea is lacking. Accordingly, the claims are not patent-eligible.
In addition to the abstract ideas indicated above, the claims include additional elements, such as:
“wherein the prompting comprises the at least one processor transmitting an alert signal over a communication network to the mobile computing device, the alert signal causing the mobile computing device to generate a haptic vibration alert, thereby notifying the player to provide the second decision via user input”.
As claimed, these additional elements are viewed as mere transmitting and receiving of data over a network and presenting of said data, which is a form of insignificant extra-solution activity and thus does not integrate the judicial exception into a practical application (See MPEP 2106.05(d)).
Further, the claims would require structure that is beyond generic, such as structure that can be interpreted analogous to a general purpose structure and general purpose computing elements in that they represent well-understood, routine, conventional elements that do not add significantly more to the claims. See Alice Corp. v. CLS Bank International, 134 S. Ct. at 2358-59. The elements of a processor, a mobile computing device, are well known conventional devices used to electronically implement a game as evidence by US 2003/0050111. US 2003/0050111 discloses that a conventional gaming machine comprises a controller with a memory, display and a processor to control the overall operation of the gaming machine (¶2). See Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018).
The dependent claims do not add “significantly more” for at least the same reasons as directed to their respective independent claims, at least based on the position, as discussed above, that each of the dependent claims merely provide additional limitations to further expand the abstract idea of the independent claims, without adding anything which would establish eligibility under 35 U.S.C. 101.
Consequently, consideration of each and every element of each and every claim, both individually and as an ordered combination, leads to the conclusion that the claims are not patent-eligible under 35 USC §101.
Response to Arguments
Applicant's arguments filed 04/24/2026 have been fully considered but they are not persuasive.
Applicant argues that the instant claims do not recite human activity or a mental process (See Remarks, pgs. 10-11). The examiner must respectfully disagree.
“A game and the rules by which it is played (i.e., method of playing) is a form of managing interactions between people. Further, the interaction may encompass both activity of a single person (for example a person following a set of instructions) and activity that involves multiple people (such as a commercial or legal interaction). Thus, some interactions between a person and a computer (for example a method of anonymous loan shopping that a person conducts using a mobile phone) may fall within this grouping” (See MPEP 2106.04(a)(2), C. Managing Personal Behavior or Relationships or Interactions Between People).
The instant claims are drawn to gaming system, wherein a series of games are played in response to a player request. Further, in response to an intermediate point of a second game satisfying one or more criteria, the player is further prompted to make a decision, via a user input device. Therefore, the instant claims, being drawn to a method of playing a game and which involves interactions, at least between a single person following a set of instructions (i.e., following a prompt to make a decision via a user input device), clearly is drawn to an abstract idea included in the grouping of “Certain Methods of Organizing Human Activity”.
Further, conducting a wagering game is a fundamental economic principle (See MPEP 2106.04(a)(2), A. Fundamental Economic Practices or Principles) and is also, by definition, is a form of contract formation (for example by placement of a wager a player is entering into a contract with a game operator, whereby the game operator agrees to provide the player with a chance at winning a game in exchange for the placement of the wager) (See MPEP 2106.04(a)(2), B. Commercial or Legal Interactions).
Applicant’s specification makes it clear that Applicant’s invention is drawn specifically to a wagering game:
“...Prior to the series of games, the player may describe rules or parameters according to which the games will be played. The player may thereby configure the gaming device to use these rules or parameters. The parameters may include: (a) the number of games to be played; (b) the time to play each game; (c) the time to play the whole series of games; (d) the amount to wager on each game; (e) the strategy to be used in each game; (f) a criterion or criteria for when to stop playing automatically; (g) a criterion or criteria for when to seek player input; (h) the type or types of games to be played; (i) the gaming device or devices to be used for conducting the game (e.g., for generating game outcomes); (j) the manner in which outcomes will be communicated to the player (e.g., the outcomes may be displayed; e.g., the outcomes may be printed on a paper for the player); or any other parameters.” (See Specification, pg. 1, 20-30).
Further, the instant claims include limitations which are clearly indicative of placement of the wager. For example, claim 2 (and similarly claims 20 and 22), includes the limitation:
“in response to determining that a second intermediate point of a second game in the series of games satisfies one or more criteria while automating the plurality of respective decisions, interrupting the automating of the plurality of respective decisions, and prompting, through the mobile computing device, the player to provide a second decision via user input in the second game, in which the one or more criteria includes a chance of attaining a hand having a payout from resuming play of the second game from the second intermediate point is above a threshold chance, in which the payout is above a first payout threshold other than zero, and in which the first payout threshold exceeds a product of a multiplier greater than one and an amount wagered…”.
Therefore, it is clear that based on a broad and reasonable interpretation of the claims, in light of the specification, that the instant claims, which are drawn to a system and method of conducting a wagering game, are drawn to at least:
A. Functions related to the playing of a wagering game, which is an abstract idea which falls within the grouping of managing relationships or interactions between people;
B. Wagering (“in response to receiving a request to play a series of games on behalf of a player”, “an amount wagered”, Also, See Specification ¶418, wherein “The player at the remote terminal may authorize the remote device to make decision in a game on his behalf. The player may, for example, type in his initials to indicate that he is authorizing the terminal to make game decisions on his behalf”), which is an abstract idea which falls within the grouping of Fundamental Economic Principles or Practices; and
C. Formation of a gambling contract (i.e., by a player placing a wager the player is entering into a contract with a game operator), which is an abstract idea which falls within the grouping of Commercial or Legal Interactions.
Each of these abstract ideas are concepts which falls within the Certain Methods of Organizing Human Activity grouping, according to the 2019 Revised Patent Subject Matter Guidelines.
Applicant argues that that the independent claims “do not recite using a computer to make decisions in video poker, but rather a unique method of when to automate, and when to interrupt automation of the decisions in video poker. The automation is not a tool, but rather the genesis of the independent claims” (See Remarks, pgs. 10-11). The examiner must respectfully disagree.
While it may be true that the claims include limitations directed toward when to automate, pause automation and resume automation, each of these steps require human activity to occur.
First a player must make a request to play a series of games to begin the “automation”. Applicant’s specification describes a request to play in an automation fashion as including a player, prior to the series of games, configuring the gaming machine to use the rules and parameters according to which the automation will play the games:
“...Prior to the series of games, the player may describe rules or parameters according to which the games will be played. The player may thereby configure the gaming device to use these rules or parameters. The parameters may include: (a) the number of games to be played; (b) the time to play each game; (c) the time to play the whole series of games; (d) the amount to wager on each game; (e) the strategy to be used in each game; (f) a criterion or criteria for when to stop playing automatically; (g) a criterion or criteria for when to seek player input; (h) the type or types of games to be played; (i) the gaming device or devices to be used for conducting the game (e.g., for generating game outcomes); (j) the manner in which outcomes will be communicated to the player (e.g., the outcomes may be displayed; e.g., the outcomes may be printed on a paper for the player); or any other parameters.” (See Specification, pg. 1, 20-30).
Therefore, a broad and reasonable interpretation of “a request”, in light of the specification, includes the player configuring the rules and parameters which will be utilized during the “automated” series of games, and as such, is an abstract idea which falls within the grouping of managing relationships or interactions between people.
Further, the decisions to pause and end the “automation” are similarly based on the parameters and rules which the player configures during the request for game play:
“...Prior to the series of games, the player may describe rules or parameters according to which the games will be played. The player may thereby configure the gaming device to use these rules or parameters. The parameters may include: (a) the number of games to be played; (b) the time to play each game; (c) the time to play the whole series of games; (d) the amount to wager on each game; (e) the strategy to be used in each game; (f) a criterion or criteria for when to stop playing automatically; (g) a criterion or criteria for when to seek player input; (h) the type or types of games to be played; (i) the gaming device or devices to be used for conducting the game (e.g., for generating game outcomes); (j) the manner in which outcomes will be communicated to the player (e.g., the outcomes may be displayed; e.g., the outcomes may be printed on a paper for the player); or any other parameters.” (See Specification, pg. 1, 20-30).
Therefore, it is clear that a broad and reasonable interpretation of when to pause or end the “automation”, in light of the specification, includes the player configuring the rules and parameters which will be utilized during the “automated” series of games, and as such, are abstract ideas which also fall within the grouping of managing relationships or interactions between people.
Applicant appears to argue that the claims address a problem that occurs as a result of automation…and is necessarily rooted in computer technology (See Remarks, pgs. 11-12). The examiner must respectfully disagree. But for the recitation of generic computing components, Applicant’s invention could be practiced using nothing more than pencil and paper, as can be shown by an analysis of the limitations of representative claim 2, which the examiner has indicated as reciting an abstract idea:
1. a player can physically place a wager and using a pencil and paper, provide instructions to a human proxy to play the games on behalf of the player;
2. physically playing a poker game, by the human proxy (i.e., automating), the series of games for the player and making decisions in each of the game at respective points in the games, without further input by the player;
3. determining for each game an outcome;
4. based on a second intermediate point of a second game in the series of games satisfying one or more criteria, stopping play by the human proxy and prompting the player to provide a second decision;
5. determining, a second outcome of the second game based on the second decision; and
6. resuming play by the human proxy after receiving the second decision.
As can be clearly seen, the claims include limitations which can be reasonably performed in the human mind. Furthermore, there are no additional elements which are sufficient to amount to “significantly more” than the judicial exception.
Applicant argues that the claimed invention solves a technical problem in the art (See Remarks, pgs. 10-11). The examiner must respectfully disagree. Eliminating a user’s involvement in a game is not a technical problem. The claimed invention does not solve a problem that arises due to technology. Applicant may have an improved abstract idea that allows users to provide input during a game, but the abstract idea does not solve a technical problem. Further, applicant’s arguments appear to concede that the claims not only include limitations that constitute interactions between people (i.e., Certain Methods of Organizing Human Activity), but rather, require the interactions between people (i.e., between the player and the game).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON PINHEIRO whose telephone number is (571)270-1350. The examiner can normally be reached M-F 8:00A-4:30P ET.
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/Jason Pinheiro/ Examiner, Art Unit 3715
/DMITRY SUHOL/ Supervisory Patent Examiner, Art Unit 3715
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