Patent Appeal Board Reconsiders Patent Subject Matter With Card Game Patent

On September 25, 2026, the Patent Appeal Board (PAB) issued its final decision in the reconsideration of Barry and Wyatt Dusome’s card game patent application, rejecting the application for claiming non-patentable subject-matter, among other defects (Barry Dusome & Wyatt Dusome (Re), 2026 CACP 5).

As previously reported by the E-TIPS® Newsletter here, the Dusomes’ applied for Canadian Patent Application Number 2,701,028 (the 028 Application) for a method of playing a wagering poker game either with conventional physical cards or a computerized system. The 028 Application was originally rejected by the Commissioner of Patents on the grounds that the claimed invention did not meet the definition of “invention” under section 2 of the Patent Act and constituted excluded subject-matter contrary to subsection 27(8). The Dusomes sought judicial review of this decision with the Federal Court. In November 2025, the Federal Court issued its decision in Dusome v Canada (Attorney General), 2025 FC 1809, finding in favour of the Dusomes and remitting the 028 Application for re-examination.

Despite applying the Federal Court’s guidance in Dusome in its redetermination, the PAB once again recommended that the Commissioner refuse the 028 Application on the grounds that it claimed non-patentable subject-matter. The PAB found that, for both claims involving the use of physical playing cards and for claims implementing the card game on a computer, the claims amounted to an abstract idea (i.e., a set of poker rules) that was implemented using well-known tools. As such, the claimed invention did not possess the requisite physicality to constitute patentable subject matter.

Accordingly, the Commissioner accepted the PAB’s recommendation and refused the 028 application.

Summary By: Claire Bettio