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Alice v. CLS
The Alice v. CLS (“Alice”) decision has created some tension in the patent world. One action stemming from the Alice decision has been USPTO Office Action rejections of a number of patent applications in the gaming arts (among other art areas) based on an assertion that they are “abstract ideas” and thus unpatentable subject matter per Alice. Although the following cannot and should not be taken as any form of legal advice, it is the view of Precedent Gaming that in an effort to try and satisfy a decision that arguably provides minimal guidance, the Office sought out patents in various art areas and, in an overly broad manner, rejected many with the assertion that they are merely abstract ideas. But an “abstract idea” is a term of art, and a patent examiner is therefore bounded in what can be properly rejected based on the assertion that a claim is drawn to an abstract idea. Although none of Precedent's patents have been rejected citing Alice as nonpatentable subject matter, other entities have had gaming applications rejected and have been forcefully challenging such rejections; with some noted successes. Should Precedent receive such a rejection, it too would forcefully challenge it, as such an assertion would be considered erroneous given the claims in Precedent's patent applications and the legal precedent (pardon the pun) as to the definitions of what is considered an abstract idea. Furthermore, the court has found that even if a claim includes an abstract idea, if sufficient limitations are included such that practice of the claim is to a new and useful end, it would be deemed allowable. After all, nearly all patent claims include elements of an abstract idea that, when substantially more is provided, become a novel, nonobvious inventive concept.
Precedent's portfolio contains valuable issued patents. Each enjoys a presumption of validity. A party would be taking great risk to practice the claims of these patents or, for that matter, the pending applications, for fear of being accused of patent infringement. There was, after all, no express or implied finding in Alice that games and gaming methods are per se invalid as abstract ideas, and it would be a mistake for an infringer to take comfort in the fact that some patent applications in the gaming arts are currently being loosely rejected because of a recent court decision that has not yet been fully vetted. Furthermore, an entity would not wish to spend the time and money to develop a product if they thought it could be prevented from entering the market by the owner of a validly issued patent.
But beyond the legal ramifications, gaming manufacturers and game developers need a constant flow of unique and novel games to keep their customers interested and satisfied. It is believed that it would be a mistake to discard the process of conceiving and designing new games due to a perceived threat from a recent court decision that, if given an overly broad application, might render some of such games nonproprietary. Even in the unlikely event that the threat were to become substantiated treatment of gaming-related patent applications, there is still an advantage in coming up with new games and new game designs and getting a jump on the market with such. Doing so would, in all likelihood, prevent another from entering the market with the same concept and provide de facto proprietary status, but would, regardless, give the developer a first-to-market advantage. And with Precedent, a proven developer of novel games, a relationship could be established to help supplement your company with new and exciting games.
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