DETAILED ACTION
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 1-13 the claimed invention is rejected under 35 U.S.C. 101 because is directed to non-statutory subject matter. The claims do not fall within at least one of the four categories of patent eligible subject matter because the claims are drawn to an abstract idea (judicial exception), including, wagering, human action (dealing), and prescribed “value” of a standard deck of cards, specifically “following rules or instructions” or “human actions” (MPEP 2106.04(a)).
Claims may still be patient-eligible if the claims recite additional elements that amount to significantly more than the judicial exception. However, all of the physical steps disclosed such as dealing and betting are standard practice and do not constitute an inventive concept, in particular “insignificant extra-solution activity” (MPEP 2106.05).
Another indicator for possible patent-eligibility is the machine-or-transformation test, which the claims do not meet. The claims are not drawn to a particular machine, but rather only manipulation (dealing, ascribing value) to a standard deck of cards. Furthermore, the act of dealing cards does not transform the article (e.g. breaking a deck of cards) as the cards are not transformed, only moved. Any act of dealing is considered “well-understood, routine conventional activities in the field” (MPEP 2106.5(d)) e.g. Webb (US 6,371,867).
In re Ray Smith, Amanda Tears Smith, Appellants. 815 F.3d 816 (2016) (See NPL) is extremely relevant to the present application, as the appealed application was drawn to a “Blackjack Variation”. The Federal Court held that a very similar blackjack game was 1) an abstract idea and 2) that the similar claims steps of shuffling and dealing did not “amount to significantly more”.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE ROBERT GRABOWSKI whose telephone number is (571)270-3518. The examiner can normally be reached M-Th 8am-6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Daniel Troy, can be reached at 571-270-3742. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KYLE R GRABOWSKI/Primary Examiner, Art Unit 3637
Prosecution Insights