Lance Lietzau

Patent Trials and Appeals Board

Jun 14, 2021

2021000205 (P.T.A.B. Jun. 14, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/782,445 10/12/2017 Lance Lietzau MINN1095 1086
44088 7590 06/14/2021
KAUFHOLD DIX PATENT LAW
P. O. BOX 89626
SIOUX FALLS, SD 57109
EXAMINER
SKAARUP, JASON M
ART UNIT PAPER NUMBER
3700
NOTIFICATION DATE DELIVERY MODE
06/14/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
jason@kaufholdlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LANCE LIETZAU

Appeal 2021-000205
Application 15/782,445
Technology Center 3700
Before STEFAN STAICOVICI, GEORGE R. HOSKINS, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. Appeal Br. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Lance Lietzau as the real party in interest.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The application is titled “System and Method of Combining a Lottery
Game and a Table Game.” Spec. 1. Claims 1, 6, and 13 are independent.
Appeal Br. 10–14 (Claims App.). We reproduce independent claim 6,
below:
6. A method of presenting a lottery and table game
combination allowing multiple players to selectively play a
lottery game while simultaneously playing a table game, said
method comprising:
receiving wagers from the players playing a primary game
on one of a plurality of table games, each of said table games
having a plurality of player positions, each player playing said
primary game is associated with at least one of said player
positions to define an active position;
presenting a second game to said active positions;
receiving betting units from the players desiring to play
said second game;
entering said betting units and an associated player
position into one of a plurality of interface assemblies, at least a
portion of said betting units being totaled to define a pool, said
interface assemblies being in communication with each other,
each of said table games having one of said interface assemblies
positioned thereon;
assigning each betting unit an identifier such that each
betting unit has a unique identifier; and
randomly selecting one of said unique identifiers and
awarding said pool [to] the player associated with said unique
identifier.
Appeal Br. 11 (Claims App.).
REJECTION
The Examiner rejects claims 1–20 under the judicial exception to 35
U.S.C. § 101 as being directed to patent-ineligible subject matter. Final
Act. 4.
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OPINION
The Examiner rejects claims 1–20 as unpatentable under 35 U.S.C.
§ 101. Final Act. 4. Appellant argues these claims as a group. See Appeal
Br. 7–8. We select independent claim 6 as the representative claim, with
claims 1–5 and 7–20 standing or falling with claim 6. 37 C.F.R.
§ 41.37(c)(1)(iv).

1. Governing Law and Guidance
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
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economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (internal citation omitted)); and
manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94
U.S. 780, 785 (1876))).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221. “A claim that recites an
abstract idea must include ‘additional features’ to ensure ‘that the [claim] is
more than a drafting effort designed to monopolize the [abstract idea].’” Id.
(alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
In 2019, the USPTO published revised guidance on the application of
§ 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (USPTO Jan. 7, 2019) (“Guidance”). Under the Guidance, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
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(2) additional elements that integrate the judicial exception
into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)
(9th ed. Rev. 08.2017, Jan. 2018)).
See Guidance, 84 Fed. Reg. at 51–55. Only if a claim (1) recites a judicial
exception and (2) does not integrate that exception into a practical
application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception
that is not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 54–56.
The Federal Circuit’s decisions in Guldenaar and Smith further guide
our analysis. In re Marco Guldenaar Holding B.V., 911 F.3d 1157 (Fed.
Cir. 2018); In re Smith, 815 F.3d 816 (Fed. Cir. 2016).
In Guldenaar, the appellant appealed an ex parte decision by the
Board affirming the examiner’s rejection of pending claims under 35 U.S.C.
§ 101. Claim 1 at issue in Guldenaar recited:
1. A method of playing a dice game comprising:
providing a set of dice, the set of dice comprising a first
die, a second die, and a third die, wherein only a single face of
the first die has a first die marking, wherein only two faces of the
second die have an identical second die marking, and wherein
only three faces of the third die have an identical third die
marking;
placing at least one wager on at least one of the following:
that the first die marking on the first die will appear face up, that
the second die marking on the second die will appear face up,
that the third die marking on the third die will appear face up, or
any combination thereof;
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rolling the set of dice; and
paying a payout amount if the at least one wager occurs.
Guldenaar, 911 F.3d at 1159. The Federal Circuit found that,
Appellant’s claimed “method of playing a dice game,” including
placing wagers on whether certain die faces will appear face up,
is, as with the claimed invention in Smith, directed to a method
of conducting a wagering game, with the probabilities based on
dice rather than on cards. Given the strong similarities to the
ineligible claims in Smith, Appellant’s claims likewise are drawn
to an abstract idea.
Id.

2. Step 1—Statutory Category
Claim 6 recites a “method of presenting a lottery and table game
combination . . . .” Appeal Br. 11 (Claims App.). The method of claim 6 is
directed to one of the statutory classes of subject matter eligible for
patenting, namely, a process. See 35 U.S.C. § 101 (“Whoever invents or
discovers any new and useful process . . . .”).

3. Step 2A, Prong 1—Recitation of Judicial Exception
We next look to whether the claim recites any judicial exceptions,
including certain groupings of abstract ideas, i.e., mathematical concepts,
certain methods of organizing human activity such as a fundamental
economic practice, or mental processes.
The Examiner found that claim 6
recites set of instructions or steps (i.e., rules) for conducting a
game and collecting, analyzing and transmitting game data
including, for example, receiving wagers from the players
playing a primary game on one of a plurality of table games, each
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of said table games having a plurality of player positions, each
player playing said primary game is associated with at least one
of said player positions to define an active position; presenting a
second game to said active positions; receiving betting units from
the players desiring to play said second game; entering said
betting units and an associated player position into one of a
plurality of interface assemblies, defining a pool by totaling at
least a portion of said betting units; assigning each betting unit
an identifier such that each betting unit has a unique identifier;
randomly selecting one of said unique identifiers to define a
winning position; transmitting said winning position to the
player associated with the randomly selected unique identifier;
and awarding said pool [to] the player associated with said
unique identifier.
Final Act. 4–5. The Examiner further found that claim 6 “recites a series of
steps instructing how to conduct a wagering game, which is a fundamental
economic practice, and thus grouped as a certain method of organizing
human activity.” Id. at 5.
Appellant argues that “the claim provides more than an abstract idea.”
Appeal Br. 7. Appellant explains that “the claims provide for an inventive
concept which is significantly more than a computer implementing generic
functions.” Id. Appellant further explains that in “the claimed invention,
players in table games (not specified to be the same game but only a table
game) can participate in a second game simultaneous to the participation in
the respective table game, and otherwise unrelated to the table games” and
that “[t]he mechanical devices are coupled to the table games and interact in
a manner not yet known to provide for a combination of gaming in a way not
previously known.” Id. Appellant argues, “[t]he mechanics and physical
devices are not used in a conventional manner alone as the core concept
includes and relies on incorporation of the mechanical devices into a first
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game (table game) unrelated to the actual game for which the mechanical
devices are being specifically used.” Id. at 8. Appellant further argues that
“this is a demonstration of more than a mere abstract idea itself.” Id.
Appellant’s argument is not persuasive. The general requirement that
the lottery game is played along with a table game does not remove claim 6
from the realm of abstraction.
As explained below, Guldenaar and Smith are instructive in our
analysis of claim 6. The steps recited in claim 6 are similar to the wagering
games that the Federal Circuit determined are abstract. See Guldenaar, 911
F.3d at 1160–61 (holding that a claimed “method of playing a dice game”
was drawn to an abstract idea); see also Smith, 815 F.3d at 819 (holding that
a “method of conducting a wagering game” using a deck of playing cards
was drawn to an abstract idea).
Turning to the first recited step in claim 6, the step of “receiving
wagers from the players playing a primary game on one of a plurality of
table games, each of said table games having a plurality of player positions,
each player playing said primary game is associated with at least one of said
player positions to define an active position,” this step is part of a method of
conducting a wagering game. This step is similar to a step discussed in
Smith, in which the dealer accepts a wager from each player. See Smith, 815
F.3d at 817–18. A method of conducting a wagering game entails randomly
determining an outcome and informing the player of the outcome.
Turning to the step of “presenting a second game to said active
positions,” the second game is part of a wager, described in the Specification
as a “lottery draw between participating players.” See, e.g., Spec. 2:6–7.
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As to the claimed step of “receiving betting units from the players
desiring to play said second game,” the betting units are simply the monetary
part of the wager. See, e.g., id. at 5:9–10 (“The term ‘betting units’ is being
utilized as each betting unit is discrete with respect to each other and are
monetarily equal to each other.”).
Turning to the claimed step of
entering said betting units and an associated player position into
one of a plurality of interface assemblies, at least a portion of
said betting units being totaled to define a pool, said interface
assemblies being in communication with each other, each of said
table games having one of said interface assemblies positioned
thereon,
nothing in the Specification leads us to believe that the recited “interface
assemblies” are anything more than a generic computer or, specifically, a
conventional tablet (e.g., an IPad) to assist in the performance of the
wagering game. See infra Part 4 (Step 2A, Prong 2). Indeed, the
Specification describes that the “interface assemblies 18 are to be used to
play a second game, or lottery game, between players.” Spec. 4:12–14.
Turning to the claimed step of “assigning each betting unit an
identifier such that each betting unit has a unique identifier,” the
Specification describes “the betting units may be synonymous with the
unique identifier” and that the “unique identifier includes information related
to who placed the wager.” Spec. 7:12–14. Thus, the step of assigning
betting units an identifier includes associating information about the people
making the wager and is, therefore, also part of the wagering game.
As to the final step of “randomly selecting one of said unique
identifiers and awarding said pool [to] the player associated with said
unique identifier,” the Specification describes that its database “is
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programmed to randomly select one of the betting units, or the unique
identifier, to define a winning bet and thereafter communicate the winning
bet and the pool to at least the interface assembly positioned on the table
game 12 associated with the player position having the winning bet.” Spec.
7:15–19. Thus, this step is simply randomly selecting a winner and
awarding the winner the pool, which is part of the wager, in which at least
one person wins a pool, which is simply defined as “at least a portion of . . .
betting units totaled.” See Appeal Br. 11 (Claims App.).
Accordingly, and just like in Guldenaar and Smith, claim 6 recites a
method of conducting a wagering game, in which the probabilities of
winning are based on chance. Considered as a whole, the recited steps,
under their broadest reasonable interpretation, contribute to the rules of
playing a wagering game and for managing interactions between people,
which are certain methods of organizing human activity.

4. Step 2A, Prong 2—Practical Application of Judicial Exception
Having agreed with the Examiner that claim 6 recites a judicial
exception, namely, certain methods of organizing human activity, we next
consider whether the claims recite “additional elements [that] integrate the
exception into a practical application.” See Guidance, 84 Fed. Reg. at 54.
Under our Guidance, this determination involves: (a) identifying
whether there are any additional elements recited in the claim beyond the
judicial exception; and (b) evaluating those additional elements individually
and in combination to determine whether they integrate the exception into a
practical application. See id. at 54–55. An exemplary consideration
indicative of an additional element (or a combination of elements) that may
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integrate the exception into a practical application is an additional element
that reflects an improvement in the functioning of a computer, or an
improvement to other technology or technical field. See id. at 55. This
evaluation requires one to determine whether an additional element or a
combination of additional elements in the claim applies, relies on, or uses
the judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the exception. Id. If the recited judicial exception is
integrated into a practical application, the claim is not “directed to” the
judicial exception. Id.
We agree with the Examiner that the
additional elements do not provide improvements to the
functioning of a computer, or to any other technology or
technical field . . . ; or apply the abstract idea with, or by use of,
a particular machine . . . ; or apply or use the abstract idea in
some other meaningful way beyond generally linking the use of
the abstract idea to a particular technological environment, such
that the claim as a whole is more than a drafting effort designed
to monopolize the exception.
Ans. 11 (citing in part MPEP § 2106.05(a), (b), (e)).
Claim 6 recites “a plurality of interface assemblies . . . said interface
assemblies being in communication with each other, each of said table
games having one of said interface assemblies positioned thereon.” Appeal
Br. 11 (Claims App.) (emphasis added). The interface assemblies are recited
generically and encompass any computing device that can be used to input
data, store and run software, and communicate with other interface
assemblies during the performance of a wagering game.
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In a particular embodiment, the Specification provides that “interface
assembly 18, as described above, may be what is conventionally known as
an electronic tablet.” Id. at 6:4–5 (emphasis added). To further illustrate an
embodiment of an interface assembly, we reproduce Figure 3 of the
Specification, below:

The Specification describes Figure 3 as a “front view of an interface
assembly of an embodiment of the disclosure” (Spec. 3:13–14) that “will
typically include a housing 22 and a processor 24 that is mounted within the
housing 22” (id. at 5:24–25). The Specification states that “interface
assemblies 18 are to be used to play a second game, or lottery game,
between players who desire to play such while also playing the primary
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game [(e.g., blackjack or roulette)].” Id. at 4:12–14. The Specification
further provides that,
As can be seen in Figure 3, a specific input location 20 may exist
for each player position 14. The term “betting units” is being
utilized as each betting unit is discrete with respect to each other
and are monetarily equal to each other. For example, a single
betting unit may be equal to a monetary amount such as $1, $5,
$10 and onward. However, the casino may decide to award
players 16 who are playing the primary game with betting units
in the form of electronic awards or award markers/chips. If the
minimum wager for the second game is $1 per play and a player
wagers $4, that player 16 will have purchased four betting units.
Id. at 5:8–15. Thus, claim 6 simply requires that the “interface assemblies”
be generic computers, such as conventional tablets, to communicate with
one another so that the players at various tables can participate in the
wagering/lottery game.
We find nothing in the Specification, nor does Appellant direct us to
anything in its argument (see Appeal Br. 7–8), to persuade us that steps
recited in claim 6 require inventive programming, require any specialized
computer hardware or other inventive computer components (i.e., a
particular machine), or that the claimed invention is implemented using
anything other than generic computer components to perform generic
computer functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt:
recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible.”). The claims do not recite any additional
elements that (1) improve the functioning of a computer or other technology,
(2) are applied with any particular machine, (3) effect a transformation of a
particular article to a different state, or (4) are applied in any meaningful
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way beyond generally linking the use of the judicial exception to a particular
technological environment, such that the claim as a whole is more than a
drafting effort designed to monopolize the exception. See MPEP
§ 2106.05(a)–(c), (e)–(h).
Accordingly, claim 6 is directed to an abstract idea.

5. Step 2B—Inventive Concept
The next consideration is whether claim 6 adds a specific limitation
beyond the judicial exception that is not “well-understood, routine, [or]
conventional” in the field. See Guidance, 84 Fed. Reg. at 56.
The Examiner determines,
When viewed as a combination, the additional limitations of
Claims 1 to 20 identified above simply instruct the practitioner
to implement the concept of managing a game at a high level of
generality in a particular technological environment. As such,
there is no inventive concept sufficient to transform the claimed
subject matter into a patent-eligible application.
Ans. 8.
Appellant argues that “the claims provide for an inventive concept
which is significantly more than a computer implementing generic
functions.” Appeal Br. 7 (emphasis added). Appellant explains, “the
mechanical devices are incorporated into table games not to manage or
control aspects of the table game to which the device is associated, but for an
altogether different game.” Id. Appellant further explains that the
“mechanics and physical devices are not used in a conventional manner
alone as the core concept includes and relies on incorporation of the
mechanical devices into a first game (table game) unrelated to the actual
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game for which the mechanical devices are being specifically used.” Id. at 8
(emphasis added).
Appellant’s argument is not persuasive.
As noted above, the general requirement that the lottery game is
played along with a table game does not remove claim 6 from the realm of
abstraction. Thus, the combination of two games as recited in claim 6
cannot serve as adding a specific limitation beyond the judicial exception to
make the claim eligible.
Further, the “mechanics and physical devices” recited in claim 6 are
the “plurality of interface assemblies.” Claim 6 requires the “interface
assemblies” to: (1) be “programmed to receive one or more betting units”;
(2) be in “communication with” a database; and (3) be “positioned on the
table game associated with the player position having said winning bet.” See
Appeal Br. 11 (Claims App.); see also Spec. 2:14–21 (describing the same).
Contrary to Appellant’s assertion (see Appeal Br. 7–8), these additional
elements, when considered individually and as an ordered combination, do
not add a specific limitation or combination of limitations that are not well-
understood, routine, conventional activity in the field.

6. Summary
For the foregoing reasons, we sustain the rejection of independent
claim 6, and of claims 1–5 and 7–20, which fall therewith (see 37 C.F.R.
§ 41.37(c)(1)(iv)), as unpatentable under 35 U.S.C. § 101.

CONCLUSION
Claims 1–20 stand rejected.
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DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED