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 .
Double Patenting
The nonstatutory 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 nonstatutory 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 nonstatutory 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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 12,387,560 B2. Although the claims at issue are not identical, they are not patentably distinct from each other. The pending claims use the term “benefit” to refer to a wagering game award whereas the patent used the term “resource”. These terms are synonymous and interchangeable and do not affect the claim scope and as such the claims do not qualify for separate patent protection.
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.
Overview:
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to to activities that the courts have recognized as abstract ideas, without a practical application or inventive concept. The claims recite result-oriented scenarios wherein a system of unknown hardware, software or architecture is operated in accordance with unknown method steps to credit benefits to game players. The claims imply a paytable structure without claiming it. The claims are directed to accounting practices for determining amounts owed and crediting them to human beings, which are fundamental economic practices that fall under the enumerated grouping of abstract ideas defined as ‘certain methods of organizing human activity,’ see MPEP 2106.04(a)(2)(II).
Especially because there are no technical details claimed that would explain how payout events are triggered or skills are observed or determined or how payouts are disbursed, these activities are determined to be within the capabilities one or more human beings. This additionally places the invention in the enumerated of grouping of ‘mental processes,’ see MPEP 2106.04(a)(2)(III).
Claiming accounting practices for a game, wherein the game is played and player paid involving one or more persons interacting with a computer is equivalent to claiming certain methods of organizing human activities, see MPEP § 2106.04(a)(2), subsection II. In order for claims to a computerized device applying abstract ideas to be patent eligible, there would have to be evidence of a practical application of such abstract ideas, for example, through claimed technical improvements to the function of a computer, to a computer network, or to a technical field. Providing new or different types of information to human beings via a display or conducting a wagering game wherein payouts are evaluated in potentially new ways are not evidence of an improvement to the function of a computer. Further details of this conclusion follow.
Neither the claims nor specification attempt to hinge patentability on any new or nonobvious computer hardware, software or system architecture – the claims are focused on result-oriented language describing illustrative payout scenarios. As such, the pending claims are found to represent an attempt to claim new rules for operating existing casino slot machines, without any practical application(s) or inventive concept(s).
Detailed Analysis
The following detailed analysis is based on the subject matter eligibility examination guidelines provided in the MPEP at https://www.uspto.gov/web/offices/pac/mpep/s2106.html
Steps 1 and 2 of the Alice analysis have been conducted for the pending claims.
Step 1 (See MPEP 2106.03): In this step, it is determined whether the pending claims are directed to at least one of the four statutory categories of subject matter. Here it is determined that all of the pending claims fall into statutory categories. The claims meet step 1 as follows:
Claims 1-20: process (method)
Step 2A, Prong 1 (MPEP 2106.04(I)): In this step of the Alice analysis, judicial exception(s) that fall into abstract idea groupings enumerated by the courts are identified and quoted.
The claims recite the following judicial exceptions:
In independent claim 1, which is considered representative:
responsive to an occurrence of a benefit triggering event at a first point in time when an identified player is associated with a first player skill rating based on a first skill score that is based on a quantifiable skill input made during a play of a skill-based game prior to the first point in time and is independent of any outcome determined for any play of any skill-based game, allocating, based on the first player skill rating, a first benefit to the identified player, and responsive to an occurrence of the benefit triggering event at a second, subsequent point in time when the identified player is associated with a second, higher player skill rating based on a second, higher skill score, allocating, based on the second, higher player skill rating, a second benefit to the identified player, wherein a value of the second benefit is lower than a value of the first benefit;
Independent claim 8 contains the same abstract idea drafted as a method claim.
Independent claim 15 adds the payout term that players determined to have a lower skill rating receive a higher benefit.
These independent claim limitations are equivalent to a high-level overview of a paytable for a game. As no particular machine is claimed, the above activities are capable of being performed by mentally observing/judging relative player performance (mental processes) and then determining prize obligations and crediting human beings accordingly (fundamental economic practices).
The fact patterns of the pending claims are analogous to those in in re Smith, 815 F.3d 816, 818-19, 118 USPQ2d 1245, 1247 (Fed. Cir. 2016) – in both the court case and the pending claims, games involving player actions are conducted and amounts owed to the player are determined and resolved in the form of a benefit. The conditions for determining amounts owed in the pending claims (a paytable with an inverse relationship between benefit amounts and skill) is the sort of “a set of rules for conducting a wagering game” that the court in in re Smith held were directed to abstract ideas because they “compare to other “fundamental economic practice[s]” found abstract by the Supreme Court.” The court in in re Smith agreed with the Board’s decision in that “[a] wagering game is, effectively, a method of exchanging and resolving financial obligations based on probabilities created during [819] the distribution of the cards. … Here, Applicants' claimed "method of conducting a wagering game" is drawn to an abstract idea much like Alice's method of exchanging financial obligations and Bilski’s method of hedging risk.” in re Smith, 815 F.3d 816, 818-19, 118 USPQ2d 1245, 1247 (Fed. Cir. 2016).
And regarding possible computerized implementation of fundamental financial activities further being directed to an organized human activity, MPEP § 2106.04(a)(2)(II) explains that “the sub-groupings [of organized human activity] encompass … activity of a single person (for example, a person following a set of instructions or a person signing a contract online) … and thus, certain activity 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 the "certain methods of organizing human activity" grouping.” The pending claims to somehow enacting a paytable through some implied but unclaimed computer(s) is additionally found to be a covered method organizing human activity.
The determination that the instant claims are directed to abstract ideas can be validated by considering four “well settled indicators of abstractness” articulated by the court in Beteiro v. DraftKings, No. 2022-2275 (Fed. Cir. June 21, 2024), which is found to be especially relevant because it, too, occupies the regulated electronic wagering art. In this decision to affirm the district court's ruling that the asserted claims are patent ineligible, the Federal circuit references four "well-settled indicators of abstractness":
1. The claims recite generic steps, such as "detecting information," "generating and transmitting a notification based on the information," "receiving a message," "determining ... and processing information," which are of a kind frequently held to be abstract.
2. The claims are drafted using largely (if not entirely) result-focused functional language, containing no specificity about how the purported invention achieves those results.
3. The claims are analogous to those deemed abstract in Federal Circuit precedents.
4. The claims can be persuasively analogized to longstanding "real-world" ("brick and mortar") activities.
The pending claims include all these indicators. They recite generic steps such as “allocating … a first benefit” and “allocating … a second benefit”. The claims are drafted entirely using result-focused functional language. There are no technical specifications attributed to any of the hardware or software or any details of how any of the benefit allocating outcomes are to be carried out. The precedents to the pending claims include in re Smith in which game operation particulars that ultimately exist to resolve any financial obligations to a user by a game operator were held to be abstract. And the claims are analogous to longstanding real-world accounting practice of determining and resolving amounts owed to a party. Determining amounts owed and crediting them are each a “fundamental economic practice long prevalent in our system of commerce” and that is a “building block of our modern economy” as in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 219-20, 110 USPQ2d 1981-82 (2014). And "The category of abstract ideas embraces ‘fundamental economic practice[s] long prevalent in our system of commerce,’ … including ‘longstanding commercial practice[s]’" Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1313, 120 USPQ2d 1353, 1356 (Fed. Cir. 2016).
The attempts to claim a new method of skill gaming prize amount optimization is also similar to how a new method of price optimization was found to be a fundamental economic concept in OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364, 115 U.S.P.Q.2d 1090, 1092 (Fed Cir. 2015). The pending claimed player-specific prize optimization is also similar to In re Greenstein, 774 Fed. Appx. 661, 664, 2019 USPQ2d 212400 (Fed Cir. 2019) in which claims to a new method of allocating returns to different investors in an investment fund was found to be a fundamental economic concept.
Regarding the enumerated grouping of "Mental processes," MPEP 2106.04(a)(2)(III) describes that, "The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. [...] The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation. [...] Nor do the courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. As the Federal Circuit has explained, "[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind." Examples of claims that recite mental processes include: a claim to "collecting information, analyzing it, and displaying certain results of the collection and analysis," where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016).
There nothing in the instant claims that would prevent human beings, such as casino dealers, from observing plays of skill-based games by players and forming conclusions that a given player of some game has a relatively higher or lower skill level and then crediting the player a predetermined benefit in accordance with an established payout schedule. As in Electric Power Group, the instant claimed use of generic computers is recited at a high level of generality.
Dependent claims:
Dependent claims 2-8, 10-15 and 17-20 can be summarized as follows:
Claims 2-7, 9-14 and 16-20 describe additional terms and conditions for the game played, how skill is scored, and details of payouts determined and credited. These claims amount to terms of a contract formed between the gaming operator and the player, such as timing constraints on gameplay, a type of wagering game played, relative sizes of possible payouts, and rules for how player skill is scored for use in evaluating amounts of payouts owed by the gaming operator.
Formation of a contract is an additional instance of an abstract idea in the claims – a conclusion that an agreement in the form of contracts is an abstract idea, is found in buySAFE, Inc. v. Google, Inc., 765 F.3d. 1350, 112 USPQ2d 1093 (Fed. Cir. 2014). The Federal Circuit described the claims as directed to an abstract idea because they were "squarely about creating a contractual relationship--a ‘transaction performance guaranty’." 765 F.3d at 1355, 112 USPQ2d at 1096. Adding the additional abstract idea of contract formation to the abstract mental processes and fundamental financial practices of the parent claims does not integrate the judicial exception into a practical application.
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Bilski, 561 U.S. at 601, 95 USPQ2d at 1005-06 (quoting Chakrabarty, 447 U.S. at 309, 206 USPQ at 197 (1980)), if there are no additional claim elements besides the judicial exception, or if the additional claim elements merely recite another judicial exception, that is insufficient to integrate the judicial exception into a practical application. See, e.g., RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327, 122 USPQ2d 1377 (Fed. Cir. 2017) ("Adding one abstract idea (math) to another abstract idea (encoding and decoding) does not render the claim non-abstract"); Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376, 118 USPQ2d 1541, 1546 (Fed. Cir. 2016) (eligibility "cannot be furnished by the unpatentable law of nature (or natural phenomenon or abstract idea) itself."); Diamond v. Diehr, 450 U.S. 175, 187 and 191-92, 209 USPQ 1, 10 (1981)), “the judicial exception alone cannot provide the improvement. The improvement can be provided by one or more additional elements.”
Step 2A, Prong 2 (MPEP § 2106.04(d)): In this step, any additional elements beyond the identified abstract ideas are identified and evaluated for any integration into a practical application. Any claimed technological improvement is considered.
Additional elements recited in the claims include:
The claims are implemented on a generic computing environment: Claim 1 recites “a system,” “a processor”. No particular machine architecture (e.g., hardware RNG module, specialized RNG conversion engine, regulatory instrumentation, secure entropy sources, or real-time pipeline constraints) is claimed.
A system comprising a processor capable of paying players in accordance with their skill level, read in light of the specification, is held to be a generic component used in a routine and conventional capacity for accounting for any wins in accordance with some paytable in a technological context. See US 2005/0054414 to Gauselmann [0025], [0046]-[0047] for evidence of the structure of conventional prior art casino gaming systems.
Applicant’s own disclosure in [0021] admits that, “the term “EGM” is used herein to refer to any suitable electronic gaming machine which enables a player to play … a game of skill…not limited to: a slot machine, a video poker machine…” which supports a finding that the claimed processor merely a generic component used in its routine and conventional capacity in the art.
The preceding additional elements, considered alone and in the context of the claims, do not integrate the abstract game-rule logic into a practical application that improves computer functionality or another technology.
There is no evidence of concrete improvement(s) to computer functionality. The claims do not recite how technical aspects of computer memory or displays are improved, nor do they recite any novel data structures or hardware configurations that enhance computer performance. A hypothetical improvement in a skill-based game player’s customer experience (by providing different relative payouts according to different relative skill levels) is not an improvement to computers themselves or to computer technology, but at best, an improvement to a human user’s experience while using a computer application.
MPEP 2106.05(a) notes that “To show that the involvement of a computer assists in improving the technology, the claims must recite details regarding how a computer aids the method, or the significance of a computer to the performance of the method. Merely adding generic computer components to perform the method is not sufficient. Thus, the claim must include more than mere instructions to perform the method on a generic component or machinery to qualify as an improvement to an existing technology.”
MPEP 2106.05(f) describes that “Use of a computer .. in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer … does not integrate a judicial exception into a practical application or provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016).
None of the examples provided by the courts for improving computer functionality are found in the instant claims. The instant claims are similar to examples the courts have not found to be enough to qualify as “significantly more”, including mere instructions to implement an abstract idea on a computer e.g., a limitation indicating that a particular function such as creating and maintaining electronic records for applying a commonplace business practice is performed by a computer, as discussed in Alice Corp., 573 U.S. at 225-26, 110 USPQ2d at 1984.
The court held that “A patent-eligible technical improvement requires solving an actual problem.” in McRO, 837 F.3d at 1314. McRO v. Bandai Namco Games Am. involved a specified, automated rules-based process for facial animation that previously could only be performed subjectively by humans and as such, the improvement to computer animation were self-evident. And in Data Engine Techs., 906 F.3d at 1007–08, a claimed method was not found to be abstract where it “provide[d] a specific solution to then-existing technological problems in . . . prior art electronic spreadsheets,” and those pre-existing problems — that users of three-dimensional spreadsheets had to “master many complex and arbitrary operations” — were taught by the specification); cf. Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1347 (Fed. Cir. 2018) (rejecting an asserted improvement where “Interval Licensing [did] not allege that computer display devices were previously unable to display information from more than one source”).
The claims comprise anecdotes of contemplated payout scenarios, described generally and with no detail as to how particular end results are achieved by any particular technology. As such it would be impossible to conclude computers or a technical field are being improved by the claimed payout scenarios.
There is no transformation of an article: Providing a different scheme for evaluating amounts owed to human beings does not transform an article into a different state or thing in the sense contemplated by the integration analysis.
The claims functionally recite desired end results without any accompanying technical details explaining how the results are achieved.
Beteiro LLC v. DraftKings Inc., (Fed. Cir 2024). In this case involving electronic wagering, the court held that when "the claims are drafted using largely (if not entirely) result-focused functional language, containing no specificity about how the purported invention achieves these results. Claims of this nature are almost always found to be ineligible for patenting under Section 101."
See also Interval Licensing LLC v. AOL Inc. (896 F.3d 1335) wherein the court found that claims to a computer software "attention manager" that displays content on unused portions of a screen were result-oriented and invalid under 35 U.S.C. § 101 because they did not recite a specific technological method for achieving the claimed result;
Contour IP Holding LLC v. GoPro, Inc., 2024 U.S. App. LEXIS 22825 (Fed. Cir. 2024): The court held that claims must not only describe desired outcomes but also include a specific process or machinery for achieving that result.
In re Killian, 45 F.4th 1373 (Fed. Cir. 2022): The court reaffirmed that claims simply reciting a desired result without specifying how to achieve it are directed to an abstract idea and are ineligible under 35 U.S.C. § 101. The claims at issue were directed to analyzing data from two databases. In the Step Two of the Alice test, the court determined that there was no inventive concept because the additional elements merely involved generic and routine data gathering and analysis steps that could have been performed with or without a computer.
MPEP § 2106.05(f) explains that, “The recitation of claim limitations that attempt to cover any solution to an identified problem with no description of the mechanism for accomplishing the result, does not integrate a judicial exception into a practical application or provide significantly more because this type of recitation is equivalent to the words "apply it"”.
The pending claims do not include any technical description of mechanisms for accomplishing the claimed results. Instead, the claims use some unspecified computer and unspecified programming to conduct generic, result-oriented steps such as “allocating” for crediting a payout owed to a player. The claims seek to cover any system and any method (such as any processor programmed in any way) for applying payouts of certain sizes to players. As such the claims are found to be directed to ineligible subject matter.
Step 2A Prong 2 concludes in a determination that the additional elements do not amount to a practical application of the claimed abstract ideas.
Step 2B: (MPEP § 2106.05) In this step of the Alice analysis, it is assessed whether additional elements amount to an inventive concept. Any well-understood, routine, conventional (“WURC”) activity is considered.
Additional elements: a processor. This is a conventional element in the art of electronic gaming and generic computing.
WURC (well-understood, routine, conventional) analysis:
Generic computer components (processor, memory, display) are WURC. See Alice v. CLS Bank, 573 U.S. 208 (2014).
Using RNGs and pay/weighted tables to determine game outcomes and payout volatility is conventional in EGMs. The specification itself describes standard EGM architectures (e.g., [0021], “any suitable electronic gaming machine…”). Planet Bingo is instructive that implementing conventional computers to manage bingo outcomes was not significantly more.
“causes the game controller to: present, in a first plurality of display positions…”, “populate, in a second plurality of display positions…” are routine result-oriented steps.
The CRM claim (Claim 14) merely places abstract instructions on a non-transitory medium; such a “Beauregard”-type claim does not add an inventive concept absent a technological improvement in the medium or execution. See In re Guldenaar; Alice.
There is no particular machine evident that is integral with the invention beyond serving as a field-of-use: The claims do not recite specialized hardware RNG, regulatory interfaces, or unconventional display controllers that would be non-WURC. There are no factual allegations or claim-level recitations of atypical, non-routine computer operations (cf. DDR Holdings or Enfish improvements) that are present.
Conclusion:
Claims 1-20 are found to be ineligible under 35 U.S.C. § 101. Although step 1 is satisfied (the claims recite manufacture/process/machine), in Step 2A Prong 1, the claims are found to recite an abstract idea—a functional overview of financial transactions conducted to resolve financial obligations to players, and do not integrate those exceptions into a practical application nor add significantly more.
Possible Remedies:
To improve subject matter eligibility under 35 USC § 101, it is recommended to anchor the claims to concrete, non-generic technical mechanisms (such as particular software processes or nonobvious system architectures) in a way that there is evidence in the claims of certain improvements to computer or network operations or to another technology. Examples might include to:
Replace high-level “allocating…” results-oriented steps with concrete computer programming operations and data structures with constraints that provide a computer-functionality improvement (e.g., improved security, faster lookup, reduced cache misses, deterministic scheduling).
Claim a particular RNG hardware/software pipeline, such as by including detailed algorithmic steps and data structures (e.g., bounded-weight lookup tables with constraints).
Limit the claims to a specific EGM hardware configuration comprising logic that is integral to, and improves, the operation of that particular machine, as opposed to attempting to hinge patentability on a subjective improved user experience through game outcomes. The court ruled in International Business Machines Corporation v. Zillow Group, Inc., (CAFC, 17 October, 2022), that "improving a user's experience while using a computer application is not, without more, sufficient to render the claims" patent-eligible. Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020).
Provide specification support (benchmarks, comparative studies, regulatory compliance details) establishing that the recited computer/EGM improvements are not WURC (per Berkheimer), enabling either Step 2A integration or Step 2B “significantly more.”
Recite in the claims a technical solution to a technological problem (e.g., secure hardware-backed attestations, novel protocol flows, improved cryptographic operations, sensor fusion pipelines).
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 4, 8, 11, 15 and 18 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 2018/0336765 A1 to Gupta et al.
Re claim 1, Gupta discloses:
A method of operating a system,
The Abstract describes that the invention of Gupta comprises providing a skill-based wagering game having configurations and payouts dependent on a player’s skill level.
the method comprising: responsive to an occurrence of a benefit triggering event at a first point in time when an identified player is associated with a first player skill rating based on a first skill score that is based on a quantifiable skill input made during a play of a skill-based game prior to the first point in time and is independent of any outcome determined for any play of any skill-based game,
Fig, 1 and the specification in [0019]-[0026] disclose proceeding with a wagering game wherein the configuration of the game is affected by a player’s skill level. The player’s skill level is determined as a numerical value on a skill scale.
A player’s skill level in Gupta can be determined independently from play conducted during one or more wagering games. Gupta states “a player’s skill level may be measured or determined relative to a presented wagering activity, or it could be determined generally.” Examples given of general, non-wagering skill level determination are prompting a player to swing a baseball bat or press buttons to measure a player’s swing speed, reaction speed or reaction time.
allocating, by a processor and based on the first player skill rating, a first benefit to the identified player,
[0026], a payout is determined for a winning outcome of the skill-based event. The payout may be based on odds.
and responsive to an occurrence of the benefit triggering event at a second, subsequent point in time when the identified player is associated with a second, higher player skill rating based on a second, higher skill score, allocating, by the processor and based on the second, higher player skill rating, a second benefit to the identified player, wherein a value of the second benefit is lower than a value of the first benefit.
[0018], “the configuration of a skill-based game is dependent upon the skill level of the player or players. … For example, relative to a particular skilled-based event, a player with a high skill level is offered lower winnings for achieving a particular outcome as compared to a player of a low skill level who achieves that same outcome”.
Re claims 8 and 15, refer to the rejection of claim 1.
Re claims 4, 11 and 18, [0054] discloses that prizes or awards provided for winning outcomes may be promotional awards
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN J HYLINSKI whose telephone number is (571)270-1995. The examiner can normally be reached Mon-Fri 10-530.
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/STEVEN J HYLINSKI/Primary Examiner, Art Unit 3715
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