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Review of Patent Board Eligibility Decision in 12/427,040

Jim Ruttler, Patent Attorney

Posted Tuesday, November 10, 2015 by Jim Ruttler

In prior posts, I summarized some recent Patent Board decisions where the examiner was reversed on eligibility. This is a more detailed look at the Board’s reversal of the eligibility rejections in case 12/427,040.

In this case, the examiner rejected the following claim as being directed toward ineligible subject matter under 35 U.S.C. 101:

  1. A method for playing a card game that simulates a game of football with kibitz and side bet options, the method comprising:providing a table as a playing area comprising:a simulated football field and a simulated line of scrimmage;areas for placing a deck of playing cards;a plurality of yard markers;a first football goal and a second football goal; andindicators comprising: tabular means, numeric means, chips, numbers, markers, or game pieces for indicating bets, game information, game statistics, or combinations thereof;providing a the [sic] deck of playing cards comprising offensive play cards and defensive play cards;providing a deck of special teams cards;randomizing the deck of playing cards and the deck of special teams cards;permitting placement of at least one bet from at least one spectator;dealing a first plurality of cards from the deck of playing cards to a first player;dealing a second plurality of cards from the deck of playing cards to a second player;designating a football offense player and a football defense player;permitting selection and play of a first card by the football offense player, wherein the first card is a first offensive card or a first defensive card;indicating a first outcome with the first offensive card or the first defensive card;dealing a replacement card for the first card from the deck of playing cards to the football offense player;determining a game outcome based on the first card;positioning the simulated line of scrimmage within the simulated football field based on the game outcome;awarding winnings based on the at least one bet and the game outcome;placing, displaying, and tracking: the bets, the game information, the game statistics, or combinations thereof using the playing area and the indicators;visually displaying a progress and a status of the card game that simulates the game of football with kibitz and side bet options using the playing area and the indicators; andupdating the progress and the status of the card game that simulates the game of football with kibitz and side bet options using the playing area and the indicators.

In rendering the rejection, the examiner concluded that the claim amounted to no more than a set of rules. Based on this, the examiner found that the claim was directed toward an abstract idea.

The Board disagreed and found that the claim was not directed toward a set of rules, but was rather directed toward playing a game using a table and cards. Because of this, the Board found that the examiner had not evaluated the actual claim language for eligibility and did not satisfy the prima facie case requirements for issuing a rejection under Section 101.

While the Board did reverse the examiner’s rejections, they did no on procedural grounds and not substantive. That is, the examiner was reversed because the examiner didn’t evaluate the actual claim language, but instead made a conclusion that was based on imagined claim language. It is uncertain what the outcome would have been had the examiner conducted a thorough examination, but the lesson here is that the Board will not hesitate to reverse an examiner who doesn’t do his/her job.

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