The U.S. Patent Office has long granted patents on new card games, but the path for patenting card games was narrowed by a Federal Circuit ruling last Thursday. In In Re Smith, the Federal Circuit Court ruled that patent claims on a new card game were ineligible for patent protection, even if the card game is novel and non-obvious. The court did acknowledge, though, that some card games are potentially patentable if they satisfy certain criteria.

The ruling is further fallout from the 2014 Supreme Court case, Alice v. CLS BankAlice limited the types of creations that are eligible for patent protection, most notably excluding patents on what the Court called “abstract ideas,” unless there is something “significantly more” that provides inventiveness in how the idea is implemented. What exactly constitutes an “abstract idea” or “significantly more” was left for future court rulings to clarify, which is why the ruling in In Re Smith should be of great interest to those inventing in the gaming space.

The patents applicant claimed to have invented a set of rules for a “method of conducting a wagering game,” specifically a game of chance based on a standard card deck. In the game, the deck is shuffled by a dealer, the dealer accepts wagers, the cards are dealt and valued according to specified rules, and the player’s wager is resolved based on whether they beat the dealer.

The Court deemed these claims to be directed to an abstract idea, explaining that the claims are directed to “rules for conducting a wagering game, [which] compare to other ‘fundamental economic practice[s]’ found abstract by the Supreme Court.” In previous cases, courts have ruled economic arrangements (like methods of hedging commodity risk) ineligible for patent protection, and the Federal Circuit analogized to those cases to support this ruling, noting that “[a] wagering game is, effectively, a method of exchanging and resolving financial obligations based on the probabilities created during the distribution of the cards.”

The ruling is not helpful for those seeking to patent card games, but the case suggests a number of paths forward.

The court noted that a novel card deck might be eligible for protection. Inventors should consider developing new decks or supplementing a standard deck with some non-generic component, like a player-supplied token.

Those inventing games based on standard decks should consider crafting their patent applications to distance their invention from this ruling. The emphasis on wagering in the Court’s analysis suggest claims should be drafted more broadly, to merely decide a winner, rather than settle a bet. Future cases will likely indicate whether this is sufficient, but the risk for inventions built around standard decks is certainly elevated.

Also of note, some of the claims in the patent application were not analyzed by the Federal Circuit because they were allowed by the patent examiner. These claims recited a computer-implemented version of the game. The Patent Office’s analysis of these claims does not carry the same weight as this Federal Circuit ruling, but it provides anecdotal evidence that computer-implemented versions of games might fare better at the Patent Office.