Saturday, December 29, 2018

Rolling the dice at the CAFC

A claim involved in the case:


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 on-
ly a single face of the first die has a first die
ing, 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 mark-
ing 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

Organizing human activity?

In its brief, Appellant that the Patent Offi
ce uses a certain label —methods of organizing human activities—
as a “catch-all abstract idea” and expresses concern
that the Board has used the phrase improperly as an
“apparent shortcut.”

We agree that this phrase can be confusing
and potentially misused, since, after all, a
defined set of steps for combining particular
ingredients to create a drug formulation could be
categorized as a method of organizing human activity.

Judge Mayer, concurring:

I agree that the claims at issue here are patent in
eligible, but write separately to make two points. First,
subject matter eligibility under 35 U.S.C. § 101 is a pure
question of law, one that can, and should, be resolved at
the earliest stages of litigation. Second, 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.


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