SG Gaming, Inc.

Patent Trials and Appeals Board

Dec 15, 2021

2021003945 (P.T.A.B. Dec. 15, 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.
16/203,349 11/28/2018 Mark L. Yoseloff 3286-10838.2(P4538-
US-CON
4431
66137 7590 12/15/2021
TRASKBRITT, P.C. /Bally Gaming, Inc.
PO Box 2550
Salt Lake City, UT 84110
EXAMINER
LAYNO, BENJAMIN
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
12/15/2021 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):
USPTOMail@traskbritt.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK L. YOSELOFF

Appeal 2021-003945
Application 16/203,349
Technology Center 3700
Before CHARLES N. GREENHUT, MICHAEL J. FITZPATRICK, 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 1–19. Appeal Br. 3. 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 Bally Gaming, Inc. (doing business as
Bally Technologies, Inc.) and Scientific Games Corporation as the real
parties in interest. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The application is titled “Paytable Resolution with Variable In-Round
Plays.” Spec. 1 (emphasis omitted). Claims 1, 6, and 12 are independent.
See Appeal Br. 33–37 (Claims App.). We reproduce independent claim 1,
below:
1. A method of operating a table with a physical deck of
cards, the table bearing a layout illustrated to define at least one
player position with an Ante position and three Play positions, a
round of the method comprising:
after receiving an Ante, at the Ante position, associated
with a player, distributing two cards from the physical deck of
cards to form an initial partial player hand;
administering three in-round Play events to form a
complete player hand, each comprising,
absent prior receipt of a fold from the player:
receiving from the player an election selected from
an option group consisting of:
the fold, and
a Play, at one of the three Play positions,
selected by the Player from a limited set of multiples
consisting of 1x, 2x, and 3x the Ante; and
after receiving the election from the player of the
Play, distributing an additional card, from the physical
deck of cards, designated as a community card; and
after administering the three in-round Play events and
forming the complete player hand, resolving all received of the
Ante and the Play based on application of the complete player
hand to a paytable displayed on a surface of the table.
Id. at 33.
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REJECTIONS
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1–19 101 Eligibility
1–19 103 De Keller,2 Feola,3
Chamberlain,4 KISS,5 Poitra6
OPINION
I. 101 Rejection
The Examiner rejects claims 1–19 as patent-ineligible under a judicial
exception to 35 U.S.C. § 101. Final Act. 2. Appellant generally argues
these claims as a group, focusing on the limitations of independent claim 1
(see Appeal Br. 24–28), with the exception being that Appellant points out
that independent claim 6 recites a “similar method of operating a ‘table’”
that receives a uses “physical tokens,” and independent claim 12 recites a
“method of operating a player-versus-paytable token collecting game” (see
id. at 29–30). We address the limitations of claims 6 and 12 in response to
Appellant’s arguments, but otherwise select claim 1 as the representative
claim, with claims 2–5, 7–11, and 13–19 standing or falling with claim 1.
37 C.F.R. § 41.37(c)(1)(iv).

a. Governing Law and USPTO 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.

2 US 2002/0008356 A1, published Jan. 24, 2002 (“De Keller”).
3 US 5,762,340, issued June 9, 1998 (“Feola”).
4 US 6,270,079 B1, issued Aug. 7, 2001 (“Chamberlain”).
5 John Marchel, “KISS Guide to Gambling,” DK Publishing, Inc. (2001)
(“KISS”).
6 US 6,042,118, issued Mar. 28, 2000 (“Poitra”).
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However, the Supreme Court has long interpreted 35 U.S.C. § 101 to
exclude “[l]aws of nature, natural phenomena, and abstract ideas.” 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. Alice, 573 U.S. 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.
Concepts that have been determined to be abstract ideas, and thus
patent-ineligible, include certain methods of organizing human activity.
Alice, 573 U.S. at 219–20; Bilski v. Kappos, 561 U.S. 593, 611 (2010).
These also include mathematical formulas (Parker v. Flook, 437 U.S. 584,
594–95 (1978)) and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67
(1972)).
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 (citation omitted). “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. (quoting Mayo, 566 U.S. at 77) (alterations in original).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
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For purposes of implementing the Supreme Court’s two-step
framework, the USPTO Director issued 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (issued January 7, 2019) (hereinafter,
the “Guidance,” and now incorporated into MPEP §§ 2103–2106.07(c)) (9th
ed. Rev. 10.2019, rev. June 2020). Step 2A, Prong 1, of the Guidance
involves first determining whether the claim recites any judicial exception,
including certain groupings of abstract ideas (i.e., mathematical concepts,
certain methods of organizing human activity, or mental processes). See id.
at 52.
If the claim is determined to recite a judicial exception, Step 2A,
Prong 2, of the Guidance involves next determining whether the claim
recites additional elements that integrate the judicial exception into a
practical application. See Guidance, 84 Fed. Reg. at 52; see also MPEP
§ 2106.05(a)–(c), (e)–(h).
Only if the claim both recites a judicial exception and fails to integrate
the judicial exception into a practical application, do we proceed to Step 2B
of the Guidance. At Step 2B, we determine whether the claim adds a
specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional” in the field (see MPEP § 2106.05(d)), or
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 56.

b. Step 1 of the Alice/Mayo Analysis—Statutory Category
Claim 1 recites a “method of operating a table with a physical deck of
cards.” Appeal Br. 33 (Claims App.). The method is directed to one of the
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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 . . . .”).

c. Step 2A, Prong 1—Recitation of Judicial Exception
The Examiner determines that the claims recite “rules for playing a
wagering card game” that “are drawn to an abstract idea.” See Final Act. 3
(emphasis omitted) (citing MPEP § 2106.05(h); In re Smith, 815 F.3d 816,
819 (Fed. Cir. 2016)). The Examiner finds that the following steps “are
considered acts of human activity or behavior that amount to following rules
or instructions” (Ans. 3) (emphasis omitted):
“after receiving an Ante, at the Ante position”,
“distributing two cards from the physical deck of cards to form
an initial partial player hand”,
“administering three in-round Play events to form a complete
player hand, each comprising, absent prior receipt of a fold from
the player: receiving from the player an election selected from an
option group consisting of: the fold, and a Play, at one of the
three Play positions, selected by the Player from a limited set
multiples consisting of lX, 2X, and 3X the Ante”,
“after receiving the election from the player of the Play,
distributing an additional card, from the physical deck of cards,
designated as a community card”,
“after administering the three in-round Play events and forming
the complete player hand, resolving all received of the Ante and
the Play based on application of the complete player hand to a
paytable”, [and]
“not comprising distributing any cards for a dealer hand.”
Ans. 3 (indentations added for clarity).
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Appellant argues that the claims “are not directed to an abstract idea,”
because the rejection “does not accord sufficient patentable weight to the
physical ‘table bearing a specific layout illustrated to define at least one
player position with an Ante position and three Play positions’ (e.g., a
particular machine) and resolving the ‘Ante and the Play’ based on the
layout (e.g., transformation).” Appeal Br. 24 (emphasis omitted). Appellant
explains,
The claimed methods are not directed abstract ideas because they
involve new and useful variations in the method of operating a
table played with a particular machine (e.g., the “Ante” and the
“Play” are performed using the “layout” of the table) and which
transforms the underlying subject matter to a different state (e.g.,
the “resolving” the “Ante and Play” “based on application of the
complete player hand to a paytable displayed on a surface of the
table”), which is an advance in the technical field of wagering
game administration via a physical table.
Id. at 25.
The Examiner has the better position. Appellant’s additional elements
(e.g., “table bearing a specific layout”) argument is addressed under Step
2A, Prong 2.
As explained in the Guidance, in Prong 1 of Step 2A, “examiners
should evaluate whether the claim recites a judicial exception,” e.g., an
abstract idea. See Guidance, 84 Fed. Reg. at 54 (emphasis added).
As to this step, claim 1 recites a method of playing a card game that
involves wagering. In particular, claim 1 recites the steps of “distributing
two cards from the physical deck of cards to form an initial partial player
hand” after “receiving an Ante,” “receiving from the player an election
selected from an option group consisting of: the fold, and a Play,” and
“resolving all received of the Ante and the Play based on application of the
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complete player hand to a paytable.” Appeal Br. 33 (Claims App.).
Independent claims 6 and 12 recite similar wagering steps. See id. at 34–35
(claim 6 reciting “distributing, from the deck of physical playing cards, an
initial partial player hand consisting of two cards”); see also id. at 36 (claim
12 reciting “after completing the player hand from the initial partial player
hand and the community cards dealt during the administration of the
plurality of Play events, resolving all received of the Ante and the Play
comprising applying the player hand against a paytable.”).
Furthermore, the Specification is replete with description that the
invention is directed to a card game involving wagering. See, e.g., Spec. ¶ 2
(“The present invention relates to wagering games, particularly wagering
games using playing cards”); see also ¶ 34 (“There are four players at a
gaming table. Each player places an initial ante wager of $10, $10, $25, and
$50, respectively . . . .”).
Accordingly, claim 1 recites a method of playing a card game by
following rules using sets of cards. According to the Guidance, this is an
example of “managing personal behavior or relationships or interactions
between people” (i.e., “following rules or instructions”) that falls within the
certain methods of organizing human activity grouping of abstract ideas.
See Guidance, 84 Fed. Reg. at 52 n.13 (citing Smith, 815 F.3d at 818).
In Smith (cited at Final Act. 3), the claimed subject matter was
directed to “[a] method of conducting a wagering game” using a deck of
playing cards. Smith, 815 F.3d at 817–18. The court concluded that the
claims were directed to rules for conducting a wagering game, and compared
the wagering game to the method of exchanging financial obligations found
to be drawn to an abstract idea in Alice. Id. at 819. Additionally, the court
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found that the claimed method of conducting a wagering game was similar
to the concept determined to be patent-ineligible in Planet Bingo, in which
the court determined that the claims recite methods for “managing a game of
Bingo” “similar to the kind of ‘organizing human activity’ at issue in Alice.”
Planet Bingo, LLC v. VKGS LLC, 576 F. App’x 1005, 1008 (Fed. Cir. 2014).
The court concluded in Smith that the claims “describing a set of rules for a
game, are drawn to an abstract idea.” Smith, 815 F.3d at 819.
Similarly, in Marco Guldenaar, the court determined that the claimed
“method of playing a dice game” was directed to a method of conducting a
wagering game having strong similarities to the ineligible claims in Smith.
In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160 (Fed. Cir. 2018).
The court concluded that the claims were drawn to “the abstract idea of
‘rules for playing a dice game.’” Id. at 1160–61.
Independent claims 1, 6, and 12 are similar to the claims found to
recite abstract ideas in Smith and, to a lesser but still significant extent,
Marco Guldenaar: each claim is directed to conducting a wagering game by
following a set of rules using cards. We agree with the Examiner that Smith
supports a determination that the claims recite the abstract idea of a set of
rules for playing a card game. See Final Act. 3; see also Guidance, 84 Fed.
Reg. at 52; MPEP § 2106.04(a)(2)(II)(C).
Accordingly, Appellant’s argument does not apprise us of Examiner
error under Step 2A, Prong 1.

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d. Step 2A, Prong 2—Additional Elements that Integrate the
Exception into a Practical Application
Having agreed with the Examiner that claims 1, 6, and 12 recite steps
for conducting a card-based wagering game by following a set of rules,
which game falls under a judicial exception, 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 Guidance, 84 Fed. Reg. at 54–55. An exemplary
consideration indicative of an additional element (or a combination of
elements) that may 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 (emphasis added). 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, then the claim is
not “directed to” the judicial exception. Id.
The Examiner determines that the claim limitations:
(1) “a deck of physical playing cards initially comprising
52 physical playing cards”;
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(2) “a physical table layout designating player position and
a position, each of the player positions visually defining an Ante
position and three Play positions”;
(3) “at least one physical token as an Ante”; and
(4) “a paytable displayed on a surface of a table”
are simply elements that generally link the use of the judicial
exception (claimed rules for playing a wagering card game are
drawn to an abstract idea[)] . . . to a particular technological
environment or field of use (a method of playing a card game on
a table). These additional elements do not add significantly more
to the judicial exception, and thus fails to add an inventive
concept to the claims.
See Final Act. 3 (citations and emphasis omitted). The Examiner further
explains that “there is no transformation in these method claims. . . . These
additional elements remain physically the same and do not transform into a
different state or thing.” Ans. 7 (emphasis omitted).
Appellant argues that the claims recite elements that integrate the
alleged abstract idea into a practical application. Appeal Br. 26. In
particular, Appellant argues that the steps of “‘receiving’ the election of the
Play ‘at one of the three Play positions’ and by ‘resolving’ all received of the
Ante and the Play ‘based on application’ of the complete player hand ‘to
[the] paytable.’” Id. at 27. Appellant further contends that “claim 1’s ‘Play,
at one of the three Play positions’ alters or affects how the timing of
distributing an additional card is performed.”7 Id. (emphasis omitted).
Appellant argues that these “‘additional elements’ are both integrated into
the claim as a whole and they alter or affect how the process is performed.”

7 In addressing the limitations of claims 6 and 12, Appellant submits that
“[s]imilar arguments for claim 1 apply to claims 6 and 12 respectively.”
Appeal Br. 28.
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Id. (emphasis omitted). Appellant further argues that the Examiner erred in
finding no transformation in the method claims, as “the present claims
include[] a transformation of the subject matter of the ‘Ante’ which is
‘representative’ of both the physical ‘token,’ and also representative of the
physical activity associated with the token (e.g., placing/moving the token
to/from the ‘Ante position’ during game play).” Reply Br. 3 (citing In re
Schrader, 22 F.3d 290 (Fed. Cir. 1994)) (emphasis added); see also infra
§ I.e (addressing a similar argument in Step 2B).
The Examiner has the better position.
We agree with the Examiner that the claimed “physical deck of
cards,” “physical table layout,” “player positions visually defining an Ante
position and three Play positions,” “at least one physical token as an Ante,”
and “a paytable displayed on a surface of the table” are recited at a high
level of generality, and do not integrate the judicial exception into a practical
application. See Ans. 4; see also id. at 5 (“these additional elements do not
integrate the abstract idea into a practical application because it does not
impose any meaningful limits on practicing the abstract idea”) (emphasis
omitted) (citing MPEP 2106.05(e)). Indeed, we do not find the game cards,
the table, or the tokens themselves as providing an improvement in the
functioning of card game subject matter and find no transformation or
reduction of a different state, thing, or subject matter in applying the
exception. Rather, these limitations amount to merely indicating a field of
use or technological environment in which to apply a judicial exception and
do not amount to significantly more than the exception itself, and do not
integrate the judicial exception into a practical application. MPEP
§ 2106.05(h).
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As to Appellant’s particular assertion that “the present claims
include[] a transformation of the subject matter of the ‘Ante,’ which is
‘representative’ of both the physical ‘token,’ and also representative of the
physical activity associated with the token” (Reply Br. 3 (emphasis added)),
we also disagree. There is no transformation of the “Ante” recited in claim
1, 6, or 12 sufficient to impart patent eligibility. Rather, the steps reciting a
“physical deck of cards,” an “Ante,” and a “table” are similar to the steps
recited in Smith, including “a dealer providing at least one deck of . . .
physical playing cards and shuffling the physical playing cards to form a
random set of physical playing cards.” See Smith, 815 F.3d at 817.
As such, the claims do not recite any additional elements (e.g.,
“physical deck of cards,” “at least one physical token for an Ante,” and “a
physical table layout designating player position and a position, each of the
player positions visually defining an Ante position and three Play positions”)
that integrate the judicial exception into a practical application.
Accordingly, Appellant’s argument does not apprise us of Examiner
error under Step 2A, Prong 2.
e. Step 2B—Inventive Concept
The next consideration is whether claim 1 adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)), or 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 56.
The Examiner determines that:
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The claimed apparatus of “a deck of physical playing cards
initially comprising 52 physical playing cards”, “a physical table
layout designating player position and a position, each of the
player positions visually defining an Ante position and three Play
positions”, “at least one physical token as an Ante” and “a
paytable displayed on a surface of a table” represent old, well
understood and conventional elements previously known in
the industry, that do not add significantly more to the claims.
Final Act. 4. In support of this finding, the Examiner cites to four U.S.
patent publications, including De Keller, Poitra, US 6,102,402 (“Scott”), and
US 2003/0008697 (“Hartl”). See id. (citing Berkheimer v. HP Inc., 881 F.3d
1360 (Fed. Cir. 2018); MPEP § 2106.05(d)).
Appellant argues that the “Examiner erred in requiring that the
claimed process ‘must’ meet the ‘machine or transformation’ test.” Appeal
Br. 28 (citing in part a non-final office action dated Nov. 29, 2019)
(emphasis omitted). Appellant further argues, however, that
“[n]otwithstanding Examiner’s error in statement of the law and insistence
that the claims must pass the machine-or-transformation test, the claims do
pass the machine or transformation test.” Id. at 29 (emphasis added). In
support of this position, Appellant cites to the following claim language,
making the following arguments:
Claim 1: “operating a table . . . bearing a layout illustrated
to define at least one player position with an Ante position and
three Play positions,” asserting that the “table” is the particular
machine, as it includes a particular “layout” which includes the
“Ante position” and “three Play positions.” The method of
operating the table provides transformation of an “Ante” and
“Play” to different states via the specific elements of the claim
(e.g., “resolving all received of the Ante and the Play based on
application of the complete player hand to a paytable displayed on
a surface of the table”). The “paytable displayed on a surface of
the table” is an additional feature of the particular machine. Claim
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l’s method of operating a table is an advance in the technical field
of operating a table and/or wagering game administration via a
physical table. Such concrete, specific actions, which involve the
manipulation, selection, and arrangement of physical objects via a
physical table requires, at least, claim 1’s “table bearing a layout
illustrated to define at least one player position with an Ante
position and three Play positions.”
Claim 6: Appellant asserts that claim 6 recites a similar
method of operating a “table” (i.e., a “table bearing a table layout
illustrated to define at least one player position with an Ante
position and three Play positions”). Claim 6 recites receipt and use
of physical tokens (e.g., “receiving, at the Ante position, at least
one physical token,” “a first Play in the form of at least one first
other physical token occupying a first of the three Play positions,”
“a second Play in the form of at least one second other physical
token occupying a second of the three Play positions,” and “a third
Play in the form of at least one third other physical token
occupying a third of the three Play positions”). Receiving and/or
using physical tokens is yet another feature of the particular
machine.
Claim 12: Appellant points out that claim 12 recites a
“method of operating a player-versus-paytable token collecting
game,” which method comprises “providing a physical table
layout designating player positions and a dealer position, each of
the player positions visually defining an Ante position and three
Play positions.”
Appeal Br. 28–29 (alterations in original added for clarity).
Appellant’s arguments are not persuasive.
First, the Examiner’s Final Office Action did not erroneously state
that Appellant’s claimed invention must pass the machine or transformation
test. See generally Final Act. Even if the Examiner made this determination
in a prior office action, the Examiner did not maintain this position in the
Final Office Action (see generally Final Act.), and Appellant does not cite
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the Final Office Action in support of this position (see generally Appeal Br.;
see also id. at 28 (citing office action dated November 29, 2019, only)).
Second, we agree with the Examiner that the recited “physical deck of
cards initially comprising 52 physical playing cards,” “‘physical table layout
designating player positions and a dealer position’ . . . [with] each of the
player positions visually defining an Ante position and three Play positions,”
“at least one physical token as an Ante,” and “a paytable displayed on a
surface of the table” represent old, well-understood conventional elements
that do not add significantly more to the claims. Ans. 6 (citation and
emphasis omitted). The Examiner cites as evidence that playing a card game
on a table with a physical layout designating player positions, a dealer
position, an Ante position, and Play positions was well-known, and
Appellant does not address this evidence. See Final Act. 4 (citing De Keller,
Scott, Hartl, and Poitra); see also Appeal Br. 28–30. Rather than addressing
the Examiner’s evidence that the claimed limitations recite old, well-
understood, or conventional elements, Appellant instead repeats large
excerpts of the claim language and generally asserts that the claimed features
pass the machine-or-transformation test. See Appeal Br. 28–30; see also
Reply Br. 3–6.
Accordingly, Appellant’s argument does not apprise us of Examiner
error under Step 2B.
f. Summary of § 101 Rejection
For the foregoing reasons, we sustain the rejection of independent
claims 1, 6, and 12, and of claims 2–5, 7–11, and 13–19, which fall
therewith (see 37 C.F.R. § 41.37(c)(1)(iv)), as patent-ineligible under the
judicial exception to 35 U.S.C. § 101. We further adopt as our own the
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Examiner’s findings and reasoning as set forth in the Final Office Action
and Answer.
II. § 103 Rejection
The Examiner rejects claims 1–19 as unpatentable over De Keller,
Feola, Chamberlain, KISS, and Poitra. Final Act. 5. Appellant argues these
claims as a group. See Appeal Br. 30–31. We select independent claim 1 as
the representative claim, with claims 2–19 standing or falling with claim 1.
37 C.F.R. § 41.37(c)(1)(iv).
In rejecting independent claim 1, the Examiner relies primarily on De
Keller for teaching the claimed subject matter. See Final Act. 5–6; see also
Ans. 8 (citing in part De Keller’s Fig. 1A). We reproduce De Keller’s
Figure 1A, below:

Figure 1A “is a top plan view of the gaming table layout for live table play.”
De Keller ¶ 17. The Examiner finds that De Keller discloses a method of
operating a table with a deck of physical playing cards including physical
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table layout 10 that designates player positions 14, dealer position 16, and
with each player position 14 defining Ante position 22 and three Play
positions 20a, 20b, and 20c. Ans. 8. The Examiner further finds that De
Keller comprises receiving an Ante at the Ante position associated with a
player and distributing two cards from a physical deck of cards to form an
initial player hand. Id. (citing De Keller ¶¶ 14, 22, 24, 30, TABLE 1). The
Examiner also finds that De Keller discloses three in-round Play events,
after the players review the initial partial player hands, and that each in-
round Play comprises a player election selected from a group comprising
“stand” (making no further wager) and “raise.” Id. (citing De Keller ¶ 33).
The Examiner further finds that De Keller teaches distributing an additional
card to each player, after receiving the election from the players from the
physical deck of cards (the community cards). See id. at 8–9 (citing De
Keller ¶¶ 31–33). The Examiner also finds that once the three in-round Play
events are administered, De Keller teaches that “all of the received Ante and
the Play based on application of the complete player hand is resolved
according to a paytable.” Id. at 9 (citing De Keller ¶ 36).
The Examiner acknowledges, however, that “De Keller does not teach
or suggest the option group as including a fold. Moreover, De Keller does
not teach or suggest eliminating the ‘stand’ option, as would be required to
modify De Keller to include an option group ‘consisting of: fold, and a
Play,’” as recited in claim 1. Final Act. 5. To address this limitation, the
Examiner relies on the following disclosure from Feola:
“After the player has placed a first wager in initial wager are 10,
the player receives three cards and the dealer is dealt seven cards
face down. The player is then permitted to view his/her cards but
is not permitted to reveal his/her cards to other players. After
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viewing his/her first three cards, the player has the option of
folding or placing a second wager in wager area 20 ....... lf the
player does not choose to make a second wager, his/her hand
is folded and all previous bets are forfeited.”
Id. at 5–6 (quoting Feola 3:12–16, 2:60–64). Based on this disclosure, the
Examiner reasons that
[I]t would have been obvious to a person having ordinary skill in
the art to modify De Keller (US 2002/0008356) method of
playing a card wagering game by only allowing each player
during each round of wagering to selection from an option group
consisting of: a fold, and a Play. This modification would have
made De Keller’s card wagering game more challenging, and
thus more exciting to play.
Id. at 6.
The Examiner further relies on Poitra for teaching “a paytable 40
displayed on a surface 16 of a table 10” (Final Act. 6 (citing Poitra 2:43–44,
3:7–29, Fig. 1) (emphasis omitted)) and reasons that a skilled artisan would
have further modified De Keller’s method of playing a card game “by
displaying De Keller’s paytable ‘TABLE 3’ . . . to the surface 10 of De
Keller’s table Fig. 1” as doing so “would have provided a quick and
convenient way of determining the payoffs of each winning player.” Id.
(referencing Poitra ¶ 36).
In contesting the rejection, Appellant argues that “the proposed
modification renders DeKeller [sic] reference ‘unsatisfactory for its intended
purpose.’” Appeal Br. 30 (citation omitted). Appellant presents two
separate arguments under this theory. See id. at 30–31.
First, Appellant explains that “[i]f Dekeller [sic] were modified with
Feola’s option to ‘fold,’ then a player would ‘fold,’ thus leaving the playing
round entirely, thus causing the player to not increase an amount wagered as
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the player would (having folded) not having any additional rounds in which
to bet.” Appeal Br. 30. Appellant asserts De Keller’s “intended purpose to
be ‘an innovation that results in an increase of the amount wagered.’” Id.
(citing De Keller ¶ 9); see also Reply Br. 6 (“DeKeller [sic] states that an
intended purpose[] of its invention is that ‘Casino operators would welcome
an innovation that results in an increase of the amount wagered.’” (citing De
Keller ¶ 9)).
Second, Appellant argues that “the combination of Poitra also renders
DeKeller [sic] unsatisfactory for its intended purpose.” Appeal Br. 31.
Appellant explains that “because DeKeller’s [sic] ante wagers are resolved
based on comparison of the player’s hand to another’s hand, then DeKeller
[sic] cannot be modified to resolve ante wager ‘based on application’ ‘to a
paytable’ as recited in claim 1.” Id. Appellant further contends that “the
combination of Poitra would completely change the method of resolving
bets in DeKeller [sic] in a way that expressly teaches against the
modification.” Id. (emphasis added).
Appellant’s arguments are not persuasive. The Examiner’s proposed
modifications of De Keller’s card game would have improved the card game
by making “De Keller’s card wagering game more challenging, and thus
more exciting to play” and by providing a “quick and convenient way of
determining the payoffs of each winning player.” See Final Act. 6.
Appellant’s arguments that De Keller “teaches against” the modification and
would have rendered De Keller’s game “unsatisfactory for its intended
purpose” are not supported by the record. See Appeal Br. 30–31.
As to Appellant’s first argument concerning the combination of De
Keller and Feola, we agree with the Examiner that Appellant is defining De
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Keller’s intended purpose too narrowly. See Ans. 13. Furthermore,
Appellant presents no evidence that modifying De Keller’s game to include
Feola’s “fold” would result in less money wagered. See Appeal Br. 30; see
also Ans. 13 (“Appellant provides no evidence showing that the option
group consisting of.....the fold...... and a Play would cause a player to not
increase the amount wagered.”). Instead, we agree with the Examiner that
“the fold option would tempt players to lean toward selecting the option to
place a Play wager increasing of the amount wagered.” Ans. 13 (emphasis
added). Indeed, the modification would have made De Keller’s card game
more challenging and exciting to play (see Final Act. 6), thus increasing the
frequency that players play the game, thereby also increasing the amount of
money wagered.
As to Appellant’s second argument concerning the combination of De
Keller with Poitra’s teachings, we further agree with the Examiner that
Appellant is attacking De Keller’s and Poitra’s teachings individually. See
Ans. 14 (citations omitted). We further agree with the Examiner that
Appellant defines De Keller’s purpose too narrowly, and nothing in De
Keller teaches against, or teaches away, from the proposed combination. Id.;
see also Appeal Br. 31. In other words, even if De Keller teaches that
“DeKeller’s [sic] ante wagers are resolved based on comparison of the
player’s hand to another’s hand,” as Appellant argues (Appeal Br. 31), this
would not have discouraged a skilled artisan from modifying De Keller’s
card game “by displaying De Keller’s paytable ‘TABLE 3’ . . . to the surface
10 of De Keller’s table Fig. 1,” as the Examiner reasons (Final Act. 6).
Appellant cites to nothing in De Keller that criticizes, discredits, or
discourages a skilled artisan from using a paytable. See DePuy Spine, Inc. v.
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Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir.
2009) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)) (“A
reference does not teach away . . . if it merely expresses a general preference
for an alternative invention but does not ‘criticize, discredit, or
otherwise discourage’ investigation into the invention claimed.”). Rather
than dissuade a skilled artisan, we agree with the Examiner that the
modification “would have provided a quick and convenient way of
determining the payoffs of each winning player.” Final Act. 6 (referencing
Poitra ¶ 36).
Accordingly, we affirm the Examiner’s rejection of independent claim
1 and claims 2–19, which fall therewith. 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
For the foregoing reasons, we sustain the rejections under 35 U.S.C.
§§ 101, 103.
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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–19 101 Eligibility 1–19
1–19 103 De Keller, Feola,
Chamberlain, KISS, Poitra
1–19
Overall
Outcome
1–19
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