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11 March 2016Patents

Blackjack patent gamble fails

The rules for a card game have been denied patent protection by the US Court of Appeals for the Federal Circuit.

Inventors Ray and Amanda Tears Smith sought protection for a patent called “Blackjack variation”, which covered a method of “conducting a wagering game”.

One of the claims was “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”.

The application, filed in 2010, also included a claim for a “dealer resolving the wagers based on whether the designated player’s hand of the banker’s/dealer’s hand is nearest to a value of 0”.

Upon examination, the US Patent and Trademark Office rejected the application because it covered ineligible subject matter. The examiner said it was an “attempt to claim a new set of rules for playing a card game”.

The inventors appealed against the rejection, but the three-judge panel on the federal circuit upheld the ruling yesterday, March 10.

Applying the two-part test outlined by the US Supreme Court in Mayo v Prometheus, the federal circuit determined that the patent was directed to an abstract idea.

Under the second part of test, an abstract idea can be eligible for protection if it demonstrates an “inventive concept”.

Judge Kara Fernandez Stoll said the patent application did not “transform” the asserted claims into a patent-eligible application.

“Just as the recitation of computer implementation fell short in Alice v CLS Bank, shuffling and dealing a standard deck of cards are purely conventional activities”.

However, Stoll added that it is possible for patents directed to games to obtain protection. “We could envisage, for example, claims directed to conducting a game using a new or original deck of cards potentially surviving step two,” she said.

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