In a little noticed ruling by a patent examiner and affirmed by the Patent Trial and Appeal Board on a patent application for a new method of playing blackjack and making side bets, the patent application was rejected as ineligible for not being new but instead being an abstract idea, thus not a new invention as it used traditional cards and based on a longstanding game. This ruling is likely to have a big impact on existing and pending variations of traditional and innovative casino card games destined for casino tables and may cause casinos to rethink licensing deals associated with side bets and game variations of traditional games.
While the court effectively killed the particular patent application, it went on to suggest in its ruling “…We could envisage, for example, claims directed to conducting a game using a new or original deck of cards potentially surviving…” which suggests in its own way how new games should be developed to qualify for patent protection. That suggestion aside, the ruling begs the question of if a number of side bets and game variations currently licensed and used by casinos are even protected and can be challenged as proprietary.
When people come up with new ideas and they wish to protect them for their own economic gain, pending the nature of the idea, they can file for patent, copyright and/or trademark protections.
Patents are issued as protections to inventors for new ideas and or new ways of doing things. They are usually issued for new inventions, mostly for new mechanical devices to do something, but they can also be issued for new processes. Process patents tend to have a higher standard, need to be truly innovative and not be a natural extension of an existing idea. So making a machine that does something new, or coming up with a truly new way of doing something you have a potentially patentable idea.
New means new though, taking an existing card game like Hearts and simply changing the game to be keyed on Clubs instead of Hearts would not constitute a new process patent, but making a machine that shuffles, deals and plays the cards against a couple of players might qualify for a patent or two, presuming someone has not already built a similar machine.
Copyrights are protections provided to the creators/authors of “original works of authorship” such as books, music, lyrics or other certain types of intellectual works. They protect the specific expression of something not the subject of the expression.
For example, a description of a card game could be copyrighted, but the copyright on that description does not stop others from writing their own description of the same card game. It only prevents others from copying the copyrighted description of the card game and would not stop them from playing the card game. As such, copyrights would not be applicable to game rules not protected by patent.
Trademarks can be a symbol, a word or combination of words used in business in association with products to indicate where the products came from and to differentiate them from products of other businesses. They are used to protect from others using the same or misleadingly similar names or symbols, they do not stop others from offering the same type of products under a different name. As trademark protections are essentially for brand names, those protections would not reach very far in trying to protect a new game in lieu of a patent.
If the ruling is sustained and held as the standard for existing and pending casino card game patent applications, simple modifications and side bets to traditional casino table games using traditional playing cards are potentially not likely to be protected.
Creators of such games will need to think in terms of creating new types and styles of playing cards as well as table new layouts to qualify for patent protection. Those same game creators will also be challenged to convince casinos to buy their specialty games with specialty cards that would be dedicated to one game type.
This particular patent ruling is not only likely to change how new casino card games are designed, created and innovate but may stifle a range of game innovations for no longer having economic opportunities to their creators and may seriously crimp the future of those gaming companies whose core business is the licensing of table game side bets.
The Analyst is an experienced gaming industry executive who offers insight each week on events and issues affecting the industry. Contact The Analyst at [email protected].