In In re Smith, Appeal No. 2015-1664, the Federal Circuit upheld the rejection of claims pertaining to rules for playing a wagering game as patent-ineligible subject matter under 35 U.S.C. § 101.

The patent application was entitled “Blackjack Variation” and claimed a “method of conducting a wagering game.”  The Examiner rejected the claims under section 101, finding that an attempt to claim new rules for playing a card game qualified as an abstract idea.  The PTAB affirmed and Smith appealed.    

Applying the two-step framework of Alice, the Federal Circuit affirmed.  First, the court found that the claims were drawn to the abstract idea of “fundamental economic practices” because a wagering game is simply a method of exchanging financial obligations based on the probabilities of the cards.  Second, the Federal Circuit found that the claims lacked an “inventive concept” sufficient to transform the claims because shuffling and dealing physical playing cards are purely conventional activities.  The Federal Circuit did note, however, that it is possible that claims directed to conducting a game using a new or original deck of cards could potentially survive step two of Alice.