Is the Bilsky Noose loosening?
March 22nd, 2017 at 8:33:40 AM
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As I am sure most of you know since 2014 it has been near impossible for game inventors to obtain utility patents for their new game ideas. Cases such as Bilsky, Alice and more on point In Re Smith set devastating precedence which essentially established that casino table games are abstract ideas and thus not eligible for utility patents. However, if you read the Court's ruling in In Re Smith you will find that there was specific limiting language included in the Order that made it clear that they did not intend on the decision to act as a blanket that nullifies all casino games from being eligible. So the question is, what elements would an eligible idea have that In RE Smith lacked? Well the Court in Smith did hint at a few examples. “That is not to say that all inventions in the gaming arts would be foreclosed from patent protection under § 101. We could envision, for example, claims directed to conducting a game with a new or original deck of cards may be eligible." There is also language referenced in both the Mayo case and Alice case that seems positive where the court stated "Abstract ideas, including a set of rules for a game, may be patent eligible if they contain an “‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Now just in the past few months a few additional cases have stoked the fire even more. The two that are most notable are McRO, INc V. Bandai Namco Games America Inc and Enfish, LLC v. Microsoft. In my opinion, McRO is the one that is most compelling. In that case, the Court reversed the District Court's ruling that the idea was ineligible as it constituted an abstract idea. The Court held that a method for automatically animating lip synchronization and facial expressions of animated characters was patent-eligible because, "the claims are focused on a specific asserted improvement in computer animation (the automatic use of rules of a particular type ); it is the incorporation of the claimed rules, not the use of the computer, that improves the process."
These cases are definitely a good sign as the Courts deal with the madness that has been created in interpreting section 101. Those of you willing to take a stab at it will first and foremost have to have a set of facts that is distinguishable from In Re Smith. That is bad news for variants and side bets. However, if you have a game that consists of a new and novel original set of rules you might just have a chance.
I'm sure there is more to come on this subject and I will give an update when it does.
Now just in the past few months a few additional cases have stoked the fire even more. The two that are most notable are McRO, INc V. Bandai Namco Games America Inc and Enfish, LLC v. Microsoft. In my opinion, McRO is the one that is most compelling. In that case, the Court reversed the District Court's ruling that the idea was ineligible as it constituted an abstract idea. The Court held that a method for automatically animating lip synchronization and facial expressions of animated characters was patent-eligible because, "the claims are focused on a specific asserted improvement in computer animation (the automatic use of rules of a particular type ); it is the incorporation of the claimed rules, not the use of the computer, that improves the process."
These cases are definitely a good sign as the Courts deal with the madness that has been created in interpreting section 101. Those of you willing to take a stab at it will first and foremost have to have a set of facts that is distinguishable from In Re Smith. That is bad news for variants and side bets. However, if you have a game that consists of a new and novel original set of rules you might just have a chance.
I'm sure there is more to come on this subject and I will give an update when it does.
