Patent Eligible Subject Matter: A Crap Shoot?
The Fed. Cir. (In re: Marco Guldenaar Holding B.V.) affirmed the Board’s decision that a dice game of chance was patent ineligible. First, noting that patent eligibility is a question of law what may contain underlying issues of fact, the court relied on In re Smith which held a method of conducting a wagering game using a deck of playing cards to be drawn to an abstract idea. Noting the similarities in determining probabilities based on dice rather than on cards, the court concluded the dice game to be an abstract idea. Appellant asserted that the PTO label of “methods of organizing human activities- as a catch-all abstract idea” was improper. The Fed. Cir. agreed that the phrase was confusing but noting the Board’s refined characterization of “rules of playing games” found no error. The argument that the use of dice of non-conventional markings was dismissed as ineligible printed subject matter. Finally, the argument that the claims were directed to a physical game with physical steps was dismissed since Bilski and Alice recited actions which occurred in the physical world. In his concurrence, Judge Mayer asserted subject matter eligibility to be purely a question of law and that dice, card and board games can never be patent eligible because they endeavor to influence human behavior rather than effect technological change.