Has Alice Killed all the Fun?January 7, 2019

Games, both the physical board and the methods of playing them, have had a long history of patent eligibility. For example, in 1904 Elizabeth Phillips patented the game board for Landlord’s Game, which was then later controversially patented by Charles Darrow in 1934 as Monopoly. While both of these patents were to the physical boards with their distinctive spaces, in 1994 Richard Garfield patented a method of playing cards which gave rise trading card games, such as Pokemon. Then in 1998, Metthew Kirby patented the method for playing word-based card games, such as Apples-to-Apples and Cards Against Humanity. Both of the Garfield and Kriby patents lived out their full and happy terms. However, the days of patenting new games may be over.

First in 2016, the United States Court of Appeals for the Federal Circuit (CAFC) decided in In re: Ray Smith, Amanda Tears Smith. In Smith, the CAFC held that gambling games were abstract ideas based on Alice because gambling is a method of exchanging financial obligations. The CAFC then held that since the game used a standard deck of cards, there was no inventive concept regardless of whether or not the rules were novel or non-obvious, but could envisage that a game using a new or original deck of cards could potentially survive Alice.

However, On December 26, 2018, the CAFC in In re: Marco Guldenaar holding B.V. held that claims reciting a method of playing a dice game, using specialized dice and involving wagering, were properly rejected by the PTO under § 101. The CAFC in Guldenaar, citing to Smith, held that the dice game was also directed to the abstract ideas of not only a method of financial obligations, but also a method of organizing human activity. Further, the CAFC held that the specialized dice had no weight as they fell under the printed matter doctrine because what was on the faces of the dice is not functionally related to the substrate of the dice and printed matter falls outside of § 101. Therefore, it seems that even if Smith had used a novel deck of cards, what would be on the face of the cards would also be printed matter, and Smith would still be ineligible subject matter, seeming to contradict their finding that a novel deck of cards may survive Alice.

This is reinforced by the concurrence in Guldenaar, in which Judge Mayer wrote, “claims directed to dice, card, and board games can never meet the section 101 threshold because they endeavor to influence human behavior rather than effect technological change.” It appears that Alice has become the Red Queen and has chopped the head off of at least Class 463, Amusement devices: Games.

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