Appeal No. 2002-0949 Page 4
Application No. 09/514,860
discarding and replacing cards not selected to be held and determining the poker
ranking of the resulting cards of the second hand. Appellants’ use of the terminology
“redisplaying the initial five [or pre-established number of] cards as a second hand”
makes it clear that the step of displaying and the first series of steps of selecting,
discarding and replacing and determining must occur prior to the step of “redisplaying”
and the second series of steps of selecting, discarding and replacing and determining.1
As clearly illustrated in Figure 1, Hachquet discloses a method of playing video
poker in which two identical five card hands 12, 14 are displayed simultaneously. Each
of the hands 12, 14 is then played, ranked and awarded individually (column 2, lines
36-37; column 3, lines 56-58).
While the examiner has rejected claims 1 and 5 under 35 U.S.C. § 103 as being
unpatentable over Hachquet, rather than under 35 U.S.C. § 102 as being anticipated by
Hachquet, thereby indicating that the examiner has recognized a difference between
Hachquet’s disclosed method and the claimed subject matter, the examiner has not
expressly identified any difference between Hachquet and the claimed subject matter,
proposed a modification to Hachquet to arrive at the claimed invention or explained the
motivation for such modification, as required for an obviousness determination under
1 We note that this interpretation is also consistent with appellants’ underlying disclosure
(specification, page 9, line 15, to page 12, line 25).
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