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In re Holding B.V.

United States Court of Appeals, Federal Circuit

December 28, 2018

IN RE: MARCO GULDENAAR HOLDING B. V., Appellant

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 13/078, 196.

          Christian D. Ehret, The Webb Law Firm, Pittsburgh, PA, argued for appellant. Also represented by Nathan J. Prepelka.

          Mary L. Kelly, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Andrei Iancu. Also represented by Thomas W. Krause, Coke Morgan Stewart, Philip J. Warrick.

          Before Chen, Mayer, and Bryson, Circuit Judges.

          OPINION

          CHEN, CIRCUIT JUDGE.

         Marco Guldenaar Holding B.V. (Appellant) appeals the final decision of the Patent Trial and Appeal Board (Board) affirming the rejection of claims 1-3, 5, 7-14, 16- 18, and 23-30 of U.S. Patent Application No. 13/078, 196 (the '196 patent application) under 35 U.S.C. § 101 for claiming patent-ineligible subject matter. Because the claims are directed to the abstract idea of rules for playing a dice game and the only arguable inventive concept relates to the dice markings, which constitute printed matter, we affirm.

         Background

         Appellant filed the provisional application from which the '196 patent application claims priority on April 2, 2010. The '196 patent application, entitled "Casino Game and a Set of Six-Face Cubic Colored Dice," relates to "dice games intended to be played in gambling casinos, in which a participant attempts to achieve a particular winning combination of subsets of the dice." Joint App. (J.A.) 140. Claim 1, which the Board treated as representative, recites:

         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;
rolling the set of dice; and
paying a payout amount if the at least one wager occurs.

J.A. 76. According to Appellant, the primary novelty of the claimed invention is the markings (or lack thereof) on the dice, which have only particular faces marked.

         The examiner rejected claims 1-3, 5, 7-14, 16-18, and 23-30 as being directed to patent-ineligible subject matter under § 101. The examiner concluded that the claims were directed to the abstract idea of "rules for playing a game," which fell within the realm of "methods of organizing human activities." J.A. 35, 85. The examiner also concluded that the claims were unpatentable for obviousness in view of U.S. Patent No. 4, 247, 114 (Carroll) ...


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