Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Procedural Summary
This is responsive to the claims filed 4/15/2024.
Claim 1 is pending.
The Drawings filed 4/15/2024 are noted.
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.
Claim 1 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Step 1:
The claims are drawn to an apparatus category.
Thus, initially, under Step 1 of the analysis, it is noted that the claims are directed towards eligible categories of subject matter
Step 2A:
Prong 1: Does the Claim recite an Abstract idea, Law of Nature, or Natural Phenomenon?
Representative Claim 1 is analyzed below, with italicized limitations indicating recitations of an abstract idea:
Claim 1: “A gaming device comprising: a display; a user interface; a memory configured to store a credit amount; a wager acceptor structured to receive a physical item associated with a currency value; and a processor operable to: receive a signal from the wager acceptor indicating receipt of a physical item associated with a currency value; increase the credit amount in memory based upon the received signal from the wager acceptor; receive a signal on the gaming device to initiate a first poker game, the signal indicating a wager amount, where the credit amount stored in the memory is reduced by the wager amount; determine if a dice feature is randomly triggered, where the dice feature awards a first dice associated with a first award type and a second dice associated with a second award type; randomly roll the first dice and the second dice to generate a first dice outcome and a second dice outcome; associate the first dice outcome with a bonus multiplier; associate the second dice outcome with a number of bonus poker games where the bonus multiplier is active; increment a bonus game counter by the number of bonus poker games; display a result of the first poker game on the display by randomly dealing a plurality of virtual cards to cards positions on the display to form a poker hand; evaluate the poker hand for the first poker game to determine first awards associated with the first poker game; multiply any determined first awards for the first poker game with the bonus multiplier; increase the credit amount in memory based on the multiplied first awards; decrement the bonus game counter to reduce the number of bonus poker games remaining; receive a signal on the gaming device to initiate a second poker game, the signal indicating a wager amount, where the credit amount is reduced by the wager amount; select a plurality of virtual cards to present in the card positions of the second poker game to form a second poker hand; display a result of the second poker game on the display; evaluate the poker hand of the second poker game to determine second awards associated with the second poker game; multiply any determined second awards for the second poker game with the bonus multiplier; increase the credit amount in memory based on the multiplied second awards; and decrement the bonus game counter to reduce the number of bonus poker games remaining.”
The italicized limitations fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG1, “certain methods of organizing human activity”, fundamental economic practices and managing interactions between people.
The claims are drawn to a wagering game; a method of exchanging consideration based on probabilities created during the dealing and displaying of outcomes; a fundamental economic practice. Here, the claims require collecting wagers, randomly displaying outcomes using dice and cards and resolving wagers.
Further, to the extent the claims are drawn to how a game is played, this represents interactions between players and a social activity. It also represents following rules/instructions (i.e., rules defining how the game is conducted.)
Prong 2: Does the Claim recite additional elements that integrate the exception into a practical application of the exception?
Although the claims recite additional limitations, these limitations do not integrate the exception into a practical application of the exception. For example, the claims require additional limitations drawn to a gaming device with a wager acceptor and GUI.
These additional limitations do not represent an improvement to the functioning of a computer, or to any other technology or technical field, (MPEP 2106.05(a)). Nor do they apply the exception using a particular machine, (MPEP 2106.05(b)). Furthermore, they do not effect a transformation. (MPEP 2106.05(c)). Rather, these additional limitations amount to an instruction to “apply” the judicial exception using a computer as a tool to perform the abstract idea.
Step 2B:
Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they amount to conventional computer implementation.
For example, as pointed out above, the claimed invention recites additional elements facilitating implementation of the abstract process. However, these elements viewed individually and as a whole, are indistinguishable from conventional computing elements known in the art. Therefore, the additional elements fail to supply additional elements that yield significantly more than the underlying abstract idea.
Regarding the Berkheimer decision, U.S. Patent No.: 6,173,955 B1 shows the conventionality of slot machines with GUIs and wager-accepting mechanisms. These elements fail to supply additional elements that yield significantly more than the underlying abstract idea. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Additionally, Applicant’s Specifications acknowledge that generic devices including laptop computers are used to implement the claimed invention.2
Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions provide conventional computer implementation of an abstract process.
Moreover, the claims do not recite improvements to another technology or technical field. Nor, do the claims improve the functioning of the underlying computer itself -- they only recite generic computing elements. Furthermore, they do not effect a transformation of a particular article to a different state or thing: the underlying computing elements remain the same.
Concerning preemption, the Federal Circuit precedent controls3:
The Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability. Alice, 134 S. Ct at 2354 (“We have described the concern that drives this exclusionary principal as one of pre-emption”). For this reason, questions on preemption are inherent in and resolved by the § 101 analysis. The concern is that “patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity.” Id. (internal quotations omitted). In other words, patent claims should not prevent the use of the basic building blocks of technology—abstract ideas, naturally occurring phenomena, and natural laws. While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. In this case, Sequenom’s attempt to limit the breadth of the claims by showing alternative uses of cffDNA outside of the scope of the claims does not change the conclusion that the claims are directed to patent ineligible subject matter. Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot. (Emphasis added.)
For these reasons, it appears that the claims are not patent-eligible under 35 USC §101.
Conclusion
Additional Relevant References: See 892
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OMKAR A DEODHAR whose telephone number is (571)272-1647. The examiner can normally be reached on M-F, generally 9am-5:30 pm.
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, David Lewis can be reached on 571-272-7673. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/OMKAR A DEODHAR/Primary Examiner, Art Unit 3715
1 See MPEP 2106
2 Specifications: [0048] A user input interface 222 such as a mouse, keyboard/keypad, microphone, touch pad, trackball, joystick, touch screen, voice-recognition system, card reader, biometric scanner, RFID detector, etc. may be provided. The user input interface 222 may be used to input commands in the computing arrangement 200, such as placing wagers or initiating gaming events on the computing arrangement 200, inputting currency or other payment information to establish a credit amount or wager amount, or inputting data to identify a player for a player loyalty system. The display 211 may also act as a user input device, e.g., where the display 211 is a touchscreen device. In embodiments, where the computing device 200 is implemented in a personal computer, tablet, smart phone, or other consumer electronic device, the user interface and display may be the available input/output mechanisms related to those devices. (Emphasis Added.)
3: Ariosa Diagnostics, Inc., V. Sequenom, Inc., (Fed Cir. June 12, 2015)