The Federal Circuit Holds Casino Game Not Patent-Eligible Subject Matter

Tuesday, January 15, 2019

The U.S. Court of Appeals for the Federal Circuit affirmed the decision on the Patent Trial & Appeal Board that patent claims reciting steps of placing a wager, rolling specially designed dice, and paying a payout were directed to an abstract idea constituting patent-ineligible subject matter.  The Federal Circuit was unconvinced by the applicant/appellant’s argument that playing a dice game cannot be an abstract idea because it recites a physical game with physical steps, finding that “the abstract idea exception [to patent subject matter] does not turn solely on whether the claimed invention comprises physical versus mental steps.”  The gaming industry may find itself particularly alarmed by Judge Mayer’s concurring opinion, in which he opined that claims directed to dice, card, and board games can “never” meet the patent-eligibility threshold of 35 U.S.C. 101 because they endeavor to influence human behavior rather than effect technological change.  In re Marco Guldenaar Holding B.V., 2017-2465, 2018 WL 6816331 (Fed. Cir. Dec. 28, 2018).