Appeal No. 2006-2057
Application No. 10/277,482
considered. See Tokyo Shibaura v. Zenith, 548 F.2d 88, 95, 193 USPQ 73, 80
(CCPA 1977).
Nor are we persuaded by appellant's assertion (brief, page 15) that numerous
elements of the claims are not taught by the reference. Appellant asserts (brief,
page 15) that the disclosure of Awada ('643) of providing each player with seven
cards is distinguished by the claim recitation that each player receives six cards.
We note that in the game of Poker, a player can play the best five of seven cards
Awada ('643) (col. 3, lines 48-52) or can play with the five cards that are dealt to
them (five card draw). Because it was known in casino games to play poker with a
varying number of cards, we find that the number of cards dealt to a player (seven
vs. six) would have been an obvious matter of optimization to an artisan. "In In re
Aller, 42 CCPA 824, 220 F.2d 454, 105 USPQ 233 (1955), the [U.S. Court of
Customs and Patent Appeals] set out the rule that the discovery of an optimum
value of a variable in a known process is normally obvious." In re Antonie, 559
F.2d 618, 621, 195 USPQ 6, 8 (CCPA 1977). There are, however, exceptions to
the rule. The case "in which the parameter optimized was not recognized to be a
result-effective variable, is [one such] exception." Id. at 621, 195 USPQ at 9.
Here, we find that in view of it being known to vary the number of cards dealt to a
player engaged in a game of Poker, we find that the number of cards dealt to the
player is a result dependent variable.
Nor are we persuaded by appellant's assertion (brief, pages 15 and 16) that
“Ornstein shows a side bet wager on consecutive wins on multiple single games,
not a side bet on consecutive wins on mandatory components of a single, multiple
component game.” In Ornstein (col. 2, lines 15-18) “[t]he bet selection markers
10
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