DETAILED ACTION
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 .
Claim Objections
Claim 20 is objected to because of the following informalities: the claim twice states “A method” on lines 1-2. Appropriate correction is required.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
The claimed invention is directed to non-statutory subject matter because the claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea.
A patent may be obtained for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. §101. The Supreme Court has held that this provision contains an important implicit exception: laws of nature, natural phenomena, and abstract ideas are not patentable. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”). Notwithstanding that a law of nature or an abstract idea, by itself, is not patentable, the application of these concepts may be deserving of patent protection. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293–94 (2012). In Mayo, the Court stated that “to transform an unpatentable law of nature into a patent eligible application of such a law, one must do more than simply state the law of nature while adding the words ‘apply it.’” Mayo, 132 S. Ct. at 1294 (citation omitted).
In Alice, the Supreme Court reaffirmed the framework set forth previously in Mayo “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of these concepts.” Alice, 134 S. Ct. at 2355. The first step in the analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Id. If the claims are directed to a patent-ineligible concept, then the second step in the analysis is to consider the elements of the claims “individually and ‘as an ordered combination”’ to determine whether there are additional elements that “‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S. Ct. at 1298, 1297). In other words, the second step is to “search for an ‘inventive concept’‒ i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. (brackets in original) (quoting Mayo, 132 S. Ct. at 1294). The prohibition against patenting an abstract idea “cannot be circumvented by attempting to limit the use of the formula to a particular technological environment or adding insignificant post-solution activity.” Bilski v. Kappos, 561 U.S. 593, 610–11 (2010) (citation and internal quotation marks omitted). The Court in Alice noted that “‘[s]imply appending conventional steps, specified at a high level of generality,’ was not ‘enough’ [in Mayo] to supply an ‘inventive concept.’” Alice, 134 S. Ct. at 2357 (quoting Mayo, 132 S. Ct. at 1300, 1297, 1294).
Examiners must perform a Two-Part Analysis for Judicial Exceptions. In Step 1, it must be determined whether the claims fall into one of the four statutory categories of invention. Claims 1-20 are directed to systems and methods, which fall into the four statutory categories. However, claims that fall within one of the four subject matter categories may nevertheless be ineligible if they encompass laws of nature, physical phenomena, or abstract ideas. See Diamond v. Chakrabarty, 447 U.S. 309 (1980).
In Step 2A, it must be determined whether the claimed invention is ‘directed to’ a judicially recognized exception. According to the specification, “Embodiments described herein relate to wagering game tournaments, and in particular to wagering game tournament for distributed gaming device networks, and related devices, systems, and methods.” Spec. ¶ 14. Moreover, the specification recognizes that a problem may arise because “changing the game or aspects of the game, such as a game level, may trigger separate legal and/or regulatory compliance requirements,” and hence the invention aims to correct this legal/regulatory problem by “using data collected from the EGM, Video Lottery Terminal (VLT) or other device while decoupling the wagering game tournament from the gameplay of the base wagering game.” Id. at ¶ 15. While the specification asserts that this solves a “technical problem,” the plain language of the specification recognizes it as a legal and regulatory one.
Representative claim 20 recites the following (with emphasis):
20. A method […] comprising:
determining, by a processor circuit, a tournament time period for a wagering game tournament and that comprises a plurality of tournament start times for different ones of a plurality of players;
receiving, by the processor circuit, a plurality of tournament entries from a plurality of video lottery tournament (VLT) gaming devices during the tournament time period, each tournament entry of the plurality of tournament entries associated with one of the plurality of players;
for each tournament entry:
receiving, by the processor circuit, a tournament initiation instruction from the VLT gaming device of the plurality of VLT gaming devices;
receiving, by the processor circuit, game play data from the gaming device of the plurality of VLT gaming devices for a base wagering game being played by the player at the gaming device during the tournament time period; and
determining, by the processor circuit, a tournament score for the player associated with the gaming device based on play data and a tournament parameter; and
evaluating, by the processor circuit, a plurality of tournament scores for the plurality of players, wherein the game play data for the base wagering game is generated by each gaming device independently of the tournament parameter.
The underlined portions of representative claim 20 generally encompass the abstract idea, with substantially similar features in claims 1 and 19. It is clear from the above citations that the claimed invention encompasses an abstract idea in the form of rules for a game played using a plurality of video lottery tournament (VLT) gaming devices. The dependent claims further define the abstract idea by introducing various rules to the game (e.g., playing within a geographically defined area, playing online, allowing players to change devices on which they are playing, sending invitations or entries to join a game or tournament, reserving unused invitations, playing at different venues owned by different operator entities, providing scores on a leaderboard, etc.). The abstract idea may be viewed, for example, as:
a method of exchanging financial obligations (e.g., an award-providing game, which is effectively a method of exchanging and resolving financial obligations based on probabilities created during the game) as discussed in Alice Corporation Pty. Ltd. v. CLS Bank International, et al., 573 U.S. 208 (2014), In re Smith, 815 F.3d 816 (Fed. Cir. 2016), and In re Marco Guldenaar Holding B.V., 911 F.3d 1157 (Fed. Cir. 2018),
a fundamental economic practice (e.g., rules for conducting a game) as discussed in In re Smith, and In re Marco Guldenaar Holding B.V.,
a method of managing a game similar to that of managing a game of bingo in Planet Bingo, LLC v. VKGS LLC, 576 F. App'x 1005 (Fed. Cir. 2014) (non-precedential);
a set of game rules similar to increasing or decreasing the risk-to-reward ratio, or more broadly the difficulty, of a multiplayer game based upon previous aggregate results, as discussed in Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342 (Fed. Cir. 2021); and/or
a method of organizing human activities (e.g., allowing a human player to play an award-providing game according to rules of the game method) as discussed in Bilski v. Kappos, 561 U.S. 593 (2010) and Alice Corp. v. CLS Bank.
The claimed abstract idea reproduced above is effectively a method of exchanging and resolving financial obligations between one or more players and an operator of the gaming machine based on probabilities created during the game (see Smith, Marco Guldenaar, and Alice). Based on the reasoning in Smith, and Marco Guldenaar, the recited steps of conducting a game in the instant claims relate to the “fundamental economic practice” of rules for conducting a game. The abstract idea is also similar to that of Planet Bingo, in which a method of managing a bingo game was found to be an abstract idea. Though the instant claims are not limited to bingo games, they encompass the management of similar games. The abstract idea is also comparable to the game rules presented on gaming machines in Bot M8 LLC v. Sony Corp. of America, in which a reward probability could be increased or decreased based on aggregating previous game outcomes placed on the gaming machines. The Bot M8 decision also found that such abstract idea is “more broadly the difficulty[] of a multiplayer game.” The instant claims are comparable to that of Bot M8 because the instant claims cause a modification (i.e., increased chance of winning a prize or larger prize) as a result of repeated plays during the tournament. Finally, the claims allow a player to win an award, which is a financial transaction based on the rules of the game (e.g., as determined by a random number generator), to send (or withhold) invitations to join a game, to play at physical venues owned by different entities, to play a game they most favor, etc. Such transactions are akin to the sort of organizing of human activities, discussed in Bilski (and shadow accounts in Alice).
Under prong 1, the above analysis demonstrates that the claimed invention encompasses an abstract idea in the form of mental processes and/or certain methods of organizing human activity. Under prong 2, the instant claims do not integrate the abstract idea into a practical application because they merely provide instructions to implement an abstract idea on a computer, or merely use a computer as a tool to perform an abstract idea, add only extra solution activity to the abstract idea, and/or generally link the use of the abstract idea to a particular technological environment or field of use. While certain physical elements (e.g., elements that are not an abstract idea such as a gaming machine) are present in the claims, such features do not effect an improvement in any technology or technical field and are recited in generic (i.e., not particular) ways. Similarly, the abstract idea does not improve the functioning of these physical elements. The claims do not (1) improve the functioning of a computer or other technology, (2) are not applied with any particular machine (only generic gaming components), (3) do not effect a transformation of a particular article to a different state, and (4) are not applied in any meaningful way beyond generally linking the use of the judicial exception to a particular technological environment (e.g., a casino or similar environment under control of a jurisdiction which uses casino protocols), such that the claim, as a whole, is more than a drafting effort designed to monopolize the exception. See MPEP §§ 2106.05(a)–(c), (e)–(h). Therefore, the claims are directed to an abstract idea.
Step 2B requires that if the claim encompasses a judicially recognized exception, it must be determined whether the claimed invention recites additional elements that amount to significantly more than the judicial exception. The claims encompass the following additional element(s) or combination of elements in the claim(s) other than the abstract idea per se: a device or system comprising a memory, a processor, a communication interface, and a medium storing to execute instructions to carry out the abstract idea, along with a display to display the game and a graphical user interface. Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself.
To the extent the claimed game machines are casino-type gaming machines, such as slot machines, the claimed features are generic, conventional, and well-known in the art of wager gaming and/or are devices and techniques that represent extra-solution activity.
For instance, US 6,142,872 to Walker et al. teaches that these elements are conventional:
“The slot server 200 and the slot machines 300-303, discussed further below in conjunction with FIGS. 2 and 3, respectively, may be embodied as conventional hardware and software, as modified herein to carry out the functions and operations described below. The slot server 200 and slot machines 300-303 transmit data between one another. The transmitted data may represent player names and corresponding identification numbers and team associations, credit balance amounts and play results. The slot server 200 and each of the slot machines 300-303 may communicate by means of cable or wireless links on which data signals can propagate” (6:53-64).
“In a per-spin embodiment, each player starts the representative slot machine 300 in a conventional manner by providing a form of payment, for example, by depositing one or more coins or bills in a coin/bill acceptor 355, or inserting a credit card, debit card or smart card into a card reader 364” (8:45-50).
“Each team player can cash out in a conventional manner by pushing a cash out button 370 on his or her respective slot machine 300-303. The CPU 310 then checks the RAM to see if the player has any credit and, if so, signals the hopper 354 to release an appropriate number of coins into a payout tray” (9:15-20).
Walker additionally teaches that “slot machines 300-303” may be embodied as “conventional hardware and software” shown in Figure 3, including three reels, a reel controller, a video display and a random number generator.
Furthermore, US 2015/0248811 to Wortmann et al. teaches that “slot machines often take the form of a video gaming machine (e.g., a dedicated gaming machine located in a casino) that includes a graphical user interface (GUI), and that may emulate a mechanical slot machine.” Wortmann ¶ 5. The reference further teaches that “[w]ith a video gaming machine, the GUI may include a display that displays an image of one or more reels or a matrix as described above, together with animation effects to simulate a spin of the one or more reels, or a spin of the columns or rows of the matrix.” Id.
Additionally, US 2002/0187828 to Benbrahim teaches a gaming machine and a master gaming controller, and notes that permitting data to flow to and from the processor of a master gaming controller is “well known.” Benbrahim ¶ 29. Benbrahim further notes, “Many gaming devices, such as that illustrated, include a card reader 38 for reading information from a player card…This information may be used in a player tracking system, as is well known in the art.” Id. at ¶ 24. Note that card reader 38 is disposed in the housing of the gaming machine in Fig. 1. Benbrahim also teaches the use of various versions of software code that is tailored to “the particular jurisdiction” in which the gaming device is to be operated. Id. at ¶ 51.
US 2008/0026854 to Chen et al. describes a “conventional gaming machine” that may include a cabinet housing that supports a display, several input devices, a currency acceptor, and encloses the electrical components, such as a processor and random number generator, with a door having a lock for the cabinet to prevent unauthorized access along with doors being in communication with the controller to alert a user if the door is opened. See e.g., Chen ¶ 27, 31, 33, and 42.
US 2004/0266533 to Gentles et al. teaches that it was known to use server-based gaming networks connected to a number of gaming terminals, which enables a gaming proprietor to augment traditional base game play with enhancements such as tournaments. Gentles ¶ 13. The reference further recognizes that gaming terminals providing video slot and video lottery “are well known in the gaming industry,” as is the need for regulating games played within a particular geographic area allowing gaming, or gaming jurisdiction. Id. at ¶ 8.
Furthermore, the specification admits that the “gaming device 100 includes a personal device, such as a desktop computer, a laptop computer, a mobile device, a tablet computer or computing device, a personal digital assistant (PDA), or other portable computing devices…In some embodiments, the gaming device 100 may be operable over a wireless network, such as part of a wireless gaming system…In such embodiments, the gaming machine may be a hand-held device, a mobile device or any other suitable wireless device that enables a player to play any suitable game at a variety of different locations…It should be appreciated that a gaming device or gaming machine as disclosed herein may be a device that has obtained approval from a regulatory gaming commission or a device that has not obtained approval from a regulatory gaming commission.” Spec. ¶ 88. As such, the invention may be implemented by a variety of well-understood, routine, and conventional devices including generic computer devices such as laptops and desktops.
In light of these factual findings, the additional claim features discussed above are well-understood, routine, and conventional and/or constitute extra-solution activities.
Taking the claimed elements individually yields no difference from taking them in combination because each element simply performs its respective function as discussed above. The claims do not purport to improve the functioning of a computer itself, nor do they effect an improvement in any other technology or technical field. Instead, the additional features merely amount to an instruction to apply the abstract idea using generic, functional, and conventional components well-known in the art. Viewed as a whole, these additional claim elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Therefore, the claims are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. See Alice Corporation Pty. Ltd. v. CLS Bank International, et al., 573 U.S. 208 (2014).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and is listed on the attached Notice of References Cited. For instance, US 2022/0309874 to Nelson teaches that it is known to provide tournament play on any suitable electronic gaming machine (such as a slot machine, a video poker machine, a video lottery terminal, a terminal associated with an electronic table game, a video keno machine, a video bingo machine, or a sports betting terminal), and/or any suitable personal gaming device (wherein the data associated with the tournament and the sporting event are accessed through a network). Nelson ¶ 15. Moreover, US 2021/0183203 to Wang et al. teaches that the term “EGM” is used herein to refer to an electronic gaming machine (such as a slot machine, a video poker machine, a sports betting terminal, a video lottery terminal (VLT), a video keno machine, or a video bingo machine located on a casino floor). Wang ¶ 65. US 2003/0060264 to Chilton et al. teaches that tournaments may be provided using electronic gaming machines (such as slot machines) and that tournaments may be any type of lottery and be performed repeatedly and at different casinos. Chilton ¶¶ 65-66.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM H MCCULLOCH whose telephone number is (571)272-2818. The examiner can normally be reached M-F 9:30-5:30.
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/WILLIAM H MCCULLOCH JR/Primary Examiner, Art Unit 3715
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