In Re: Marco Guldenaar Holding B.V., the Federal Circuit held a game with specially marked dice patent ineligible under 35 U.S.C. § 101.
Representative claim 1 recited:
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;
paying a payout amount if the at least one wager occurs.
The Federal Circuit held claim 1 was directed to the abstract idea of rules for playing a dice game. While a set of game rules may be patent-eligible if the claims contain an inventive concept sufficient to transform the abstract idea into a patent-eligible application, the claim recited placing a wager, rolling the dice, and paying a payout amount if at least one wagered outcome occurs none of which appellant disputes is conventional, either alone or in combination and special markings on the dice constituted printed matter outside the scope of § 101.
In an attempt to satisfy the second part of the Alice test, appellants argued the dice had markings on the die faces that were not conventional and their recitation in the claims amounted to "significantly more” than the abstract idea.
The Federal Circuit noted each die’s marking or lack of marking communicates information whether the player has won or lost a wager, similar to the markings on a typical die or a deck of cards. Further, the claim limitations are directed to information that is not functionally related to the substrate of the dice. In short, the markings constituted printed matter.
Just as the claimed steps of shuffling and dealing playing cards fell short in In re Smith, the Federal Circuit held the claims conventional and the markings insufficient to recite an inventive concept.
The Federal Circuit observed other games might be patent eligible, but I think games that are novel in the informational content may struggle to avoid that content being treated as "printed matter" and the game being held patent ineligible.
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