‘Tic Tac Fruit’ Gaming System Claims Fail CAFC’s Eligibility Analysis

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday, March 21, affirmed a district court’s grant of summary judgment that claims of a patent for an electronic gaming system were ineligible under Section 101.

U.S. Patent No. 7,736,223 is owned by Savvy Dog Systems and POM of Pennsylvania (Savvy Dog) and is directed to a “more skill-based and less chance-based” version of an electronic game called “Tic Tac Fruit.” Savvy Dog sued Pennsylvania Coin and PA Coin Holdings (Pennsylvania Coin) for infringement in the Middle District of Pennsylvania. Pennsylvania Coin moved to dismiss the case, in part because it said the claims constituted patent ineligible subject matter.

The district court agreed, holding that “claim 44 describes the rules for playing a game, and is thus an abstract idea within the meaning of Alice step one.” However, the district court denied the motion to dismiss because determination of Alice step two, specifically, “[w]hether the technology embedded into the game processor is an improvement and ‘inventive concept’ is a question of fact that the court cannot determine at this early stage of litigation.” Following claim construction, Pennsylvania Coin moved for summary judgment, again arguing the claims were ineligible, and the court said at Alice step two “that none of the claimed elements of claim 44 individually, or in an ordered combination, transformed the abstract idea into an inventive concept,” thus granting summary judgment.

On appeal, the CAFC noted that Savvy dog disagreed with the district court’s characterization of claim 44 as being directed to the rules for playing a game and said instead that the claim is “actually directed to ‘a novel gaming terminal architecture’ that previews the game ‘before the player commits to play the game, thereby elevating skill and lessening the role of chance in the game.’”  But the CAFC said that, under either construction, the claim is directed to an abstract idea. Citing to In re Smith, the appellate court said it has “found similar game implementations to be patent ineligible” and that, even under Savvy Dog’s interpretation, “claim 44 is not directed to a technological solution to a technological problem.” Further citing to Chargepoint v. SemaConnect, the CAFC continued:

“Notably, the specification does not describe ‘overcoming some sort of technical difficulty’ in displaying the preview of the game before player commitment….

Indeed, the invention is directed to a concept for overcoming the legal obstacles discussed in the Background section of the patent rather than providing a technological solution to a technological problem.”

While Savvy Dog had argued that the invention solves the legal problems surrounding Ohio’s crackdown on electronic gambling games, after which only “skill-based” games in which “the outcome of play during the game must be controlled by the person playing the game and not by predetermined odds or random chance controlled by the machine,” the CAFC said the solution offered is not a technological one. “Rather the purported elevation in the player’s skill is due to when the game field is displayed, not how it is displayed,” wrote the court. “Stated differently, nothing in the claim or the specification describes a new technological way of displaying.”

At Alice step two, Savvy Dog argued that “the testing of the game field and the automatic previewing of the actual game to be played, whether individually or as an ordered combination, are inventive concepts,” according to the opinion. But the CAFC found that “these steps are abstract ideas themselves—whether viewed as part of a set of rules for playing a game or part of a game previewed to the player before committing to playing—and thus cannot be an inventive concept under Alice step two.”

Since all that is left of the claim after the abstract idea is identified are “generic and conventional computer components (e.g., a gaming terminal and touch screen display) that are used in a routine and conventional way,” the claim also fails at Alice step two, said the court.

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Author: miflippo
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