Appeal No. 2002-0105 3
Application No. 09/398,891
Moody pertains to electronic video poker games. As explained in the abstract:
The method . . . involves a card game in which at least two rows of
cards, and preferably three rows, are dealt to a player. The player makes a
wager for each row of cards. All three rows of cards are dealt face up with
each row having the same cards by rank and suit. The player selects none,
one or more of the face up cards from one of the rows as cards to be held.
The cards that are held are also held in all of the other rows. Replacement
cards for the non-selected cards are dealt into each row. The poker hand
ranking of each five card hand by row is determined. The player is then paid
for any winning poker hands based on a pay table and the amount of the
player’s wager.
Moody discloses many game variations, “with the common thread being that cards
are duplicated from a first row of cards into one or more additional rows to allow the player
the opportunity to play one or more cards from the staring [sic] row of cards multiple times”
(column 1, lines 23-26).
The initial burden of establishing a basis for denying patentability to a claimed
invention rests upon the examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984). If the examiner fails to establish a prima facie case, the rejection is improper and
will be overturned. See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir.
1988).
In the present case, the examiner has not met her initial burden of establishing a
prima facie case of anticipation or obviousness. Concerning anticipation, the examiner
has not pointed out where Moody discloses, either expressly or under the principles of
inherency, the requirement, found in one form or another in each of the independent
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