Summary: Claims directed to the abstract idea of rules for playing a dice game are not transformed into patent eligible subject matter by the addition of printed matter.

The patent examiner rejected the application at issue under § 101, because the claims were directed to the abstract idea of rules for playing a dice game. The PTAB and then the Federal Circuit affirmed. The Federal Circuit previously held, in In re Smith, 815 F.3d 816 (Fed. Cir. 2016), that a “method of conducting a wagering game” using a deck of playing cards was an abstract idea. Similarly, the claims here were directed towards the abstract idea of a wagering game, but with dice. The Applicant argued that the claimed dice markings were novel and not abstract. The Federal Circuit rejected that argument because the dice markings constituted “printed matter,” which information is not patent eligible subject matter and is outside the scope of § 101. Without an “inventive concept” the claimed subject matter is not patent eligible.

Judge Mayer concurred in the judgment but wrote separately to state that: (1) the § 101 analysis is a pure question of law; and (2) claims directed to dice, card, and board games are not patent eligible because they endeavor to influence human behavior rather than effect technological change.