US Federal Circuit Finds That a New Card Game is not Patent-Eligible Subject Matter

On March 10, 2016, in In re: Ray Smith, Amanda Tears Smith, 2015-1664, the US Court of Appeals for the Federal Circuit (CAFC) affirmed the United States Patent Trial and Appeal Board’s decision that a method of conducting a wagering game is a non-patentable “abstract idea.”

On October 26, 2010, the appellants filed a patent application entitled Blackjack Variation, which disclosed a wagering game using real or virtual playing cards. The patent examiner rejected the application because the disclosed set of rules were found to constitute an “abstract idea.” “Abstract ideas” are ineligible subject matter under §101 of the US Patent Act according to US courts. Although no definition of “abstract idea” has been provided by the courts, various examples, now including this invention, have been provided. The appellants appealed the examiner’s findings to the Board, which affirmed the examiner’s findings.

In its decision, the CAFC applied the two step test from the US Supreme Court’s Mayo decision and the recent Alice decision (reported in the E-TIPS® Newsletter here). First, the CAFC determined whether the claims at issue were directed to an unpatentable “abstract idea.” Secondly, the CAFC examined the elements of the claim to determine whether the claimed invention included an inventive concept sufficient to transform the claimed “abstract idea” into patent-eligible subject matter. The CAFC found that the application claimed rules for conducting a wagering game that were merely “abstract ideas.” Further, the CAFC found that shuffling and dealing of “physical playing cards” are purely conventional activities which are not sufficient to transform the claimed subject matter into patent-eligible subject matter.

Finally, the CAFC noted that “claims directed to conducting a game using a new or original deck of cards could potentially survive the Alice test.”