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Ex Parte Edward L. Palmer

Representative Claim

  1. A method for playing a card game combining elements of poker and a simulated sporting event, the game method of play comprising the steps of:
    1. providing a deck of cards comprising rank and suit cards suitable for playing the game of poker, at least one of the cards comprising sporting event scoring indicia;
    2. carrying out the play of at least one hand of the game of poker with the deck of cards and determining a winner based on the rules of poker; and
    3. concurrent with the play of the at least one hand of the game of poker, scoring the sporting event scoring indicia present on the cards dealt and determining a winner based on the sporting event scoring.

Posture:

Appeal.

Abstract Idea: Yes

“Each one of independent claims 1, 20, and 31 is directed to a method of playing a card game. … We view a method of playing a card game as being akin to “a method of organizing human activity” at issue in Alice. Alice, 134 S. Ct. at 2356.”

Something More: Yes

“We find Appellant’s arguments persuasive. The claims at issue recite a deck of cards with a high degree of particularity. … [T]he claims specify a particular make-up of the deck, including the number of cards contained in the deck and unique card markings. Thus, we determine that the claimed deck of cards is a particular article or apparatus in the context of the machine-or-transformation test.”

Additional Information:

“Examiner found that the claimed cards are not limited to any particular apparatus or article because Appellant’s Specification “states that the claimed cards are inclusive of [the] ‘electronic gaming environment’ . . . and modifications to the number of cards and even the configuration of the cards.”’ Id. at 10-11 (quoting Spec. ¶ 111).

Appellant disagrees, arguing that the claimed cards are not “insignificant extra-solution activity” because there “would be no game if it were not for the cards.” Appeal Br. 15. Appellant further argues that the “mere mention of the ‘electronic gaming environment’ in the Specification does not thrust the game method of play into the abstract. It simply acknowledges that the object being manipulated in the game method of play may be an electronic representation of the deck of cards.” Reply Br. 4.”

“The Examiner also found that the claimed cards are not tied to or required by the steps of the claimed method because “they do not actually perform any of the steps of the claimed method.” Answer 11. Claims 1 and 31, however, both recite carrying out play of the game “with the deck of cards” (emphasis added). Therefore, contrary to the Examiner’s assertion, these claims explicitly require the use of the claimed deck of cards to perform the method steps. Independent claim 20 recites, inter alia, steps requiring dealing the cards, discarding the cards, and determining winning hands “based on the cards” (emphasis added). As such, claim 20 also requires the use of the claimed deck of cards to perform the method steps. We also disagree with the Examiner’s assertion (Answer 12) that non-card game elements, such as tiles or dice, “can be used to convey the game indicia” because the claims explicitly require performing steps “with the deck of cards” or “based on the cards.” For these reasons, we determine the methods recited in independent claims 1, 20, and 31 are tied to the claimed deck of cards.”