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In re Marco Guldenaar Holding B.V.

Patent Ineligibilty Confirmed for Dice Game

In re Marco Guldenaar Holding B.V.911 F.3d 1157 (Fed. Cir. Dec. 28, 2019) (CHEN, Mayer (concurring in the judgment), Bryson) (PTAB) (2 of 5 stars)

Fed Cir affirms rejection of claims as directed to patent-ineligible subject matter. The claims related to rules for a dice game played with dice marked in a particular way. Applying the Alice/Mayo framework, the claims are directed to an abstract idea at step one. Per Smith, 815 F.3d 816 (Fed. Cir. 2016), and others, methods of conducting wagering games are generally abstract. The opinion notes that the Patent Office’s label “methods of organizing human activity” may be imprecise, but in this case “there is no error in also observing that the claimed abstract idea is one type of method of organizing human activity.” Op. at 5. At Alice/Mayo step two, the claims did not include an inventive concept sufficient to confer patentability. That its dice had specific markings was insufficient, as such markings constitute printed matter and are not entitled to patentable weight per AstraZeneca, 633 F.3d 1042 (Fed. Cir. 2010), and Praxair, 890 F.3d 1024 (Fed. Cir. 2018).

The Board’s grouping of claims, treating claim 1 as representative, was reasonable, particularly as Appellant’s briefing offered no explanation of how any dependent claims might be patent eligible.

Concurrence in the judgment: Judge Mayer does not agree that the patent eligibility inquiry “may contain underlying issues of fact.” He views patent eligibility as an issue of law “that can, and should, be resolved at the earliest stages of litigation.” Dissent at 1. He would also have held Applicant’s claims patent ineligible because they merely seek to “improve or influence human thought or behavior,” id. at 6, and do not pursue technological change.

KEYWORDS: SUBJECT-MATTER ELIGIBILITY; SECTION 101; ABSTRACT IDEA