Ritner has a trick up his sleeve

In Ex Parte Ritner JR. et al, No. 2009-013343 (BPAI Jan 18, 2012), we saw counsel for the inventors Ritner JR. and Ehrlich appear before the Board of Patent Appeals and Interferences. The Appellants were arguing that their US Patent Application 10/323,455 should be patentable.

The invention was directed to a casino style card game having wagering features. The game used one or more decks of standard playing cards.

Claim 1 for example read as follows:

1. A method of playing a wagering game utilizing one or more decks of standard playing cards comprising: 

accepting a primary wager from each participating player; 

dealing each player and a dealer five cards; 

requiring each player and the dealer to arrange the five cards into a three-card hand and a two-card hand wherein each player's two-card hand must achieve a minimum pre-established rank for each player to be eligible for a payout on the primary wager and wherein the dealer's hand is not required to achieve a minimum preestablished rank; 

comparing the rank of the dealer's three-card hand to the rank of each player's three-card hand and comparing the rank of the dealer's two-card hand to the rank of each player's two-card hand; and 

settling each player's primary wager dependent upon the comparison of the rank of the dealer's three-card hand to the rank of each player's three-card hand and the comparison of the rank of the dealer's two-card hand to the rank of each player's two card hand.

The Examiner had objected to claim 1 and others as being directed to non-statutory subject matter.  The Examiner applied only the machine-or-transformation test.

Not abstract

The Board agreed with the Appellants. They noted that the Examiner cited the machine-or-transformation test but had not articulated a full analysis under 35 U.S.C. 101.

Claim 1 contained a limitation for dealing each player and a dealer five cards and settling each player's primary wager. These were not abstract ideas or insignificant extra-solution activity in the scope of the claim.

The Board reversed the Examiner's rejection of the claims as being directed to non-statutory subject matter.

Photo courtesy of author ARACELOTA under Creative Commons licence.