Appeal No. 2006-0648 7
Application No. 09/815,181
meeting the second game wager limitations in independent claims 1, 22 and 41 stems
from hindsight knowledge impermissibly derived from the appellant’s disclosure.
Moreover, this fundamental flaw in the examiner’s application of Malek, Aramapakul
and Cadaco finds no cure in the additional application of Gibson, Scarne, Perkins and/or
Webb.
Independent claim 22 also recites the step of displaying at least two cards and no
more than three cards representing the respective hands of a player and the dealer. In the
same vein, independent claim 41 recites the step of dealing exactly and only three cards
to a player and to the dealer. The examiner turns to Aramapakul and Perkins to account
for the acknowledged failure of Malek to meet these limitations.
As discussed above, Aramapakul pertains to a supplemental wager for target
numerical sum games such as Blackjack and Baccarat. Perkins discloses a supplemental
wager for Three Card Poker. According to the examiner (see pages 8 and 9 in the
answer), it would have been obvious in view of Aramapakul and Perkins to simplify the
Malek game by using only two or three cards. Here again, however, the only suggestion
in the applied references for such a selective and substantial modification of the Malek
game stems from hindsight knowledge impermissibly derived from the appellant’s
disclosure.
Hence, the combined teachings of the references applied by the examiner do not
justify a conclusion that the differences between the subject matter recited in independent
claims 1, 22 and 41 and the prior art are such that the subject matter as a whole would
have been obvious at the time the invention was made to a person having ordinary skill in
the art. Accordingly, we shall not sustain the standing 35 U.S.C. § 103(a) rejection of
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