Appeal No. 2006-1909 Page 3
Application No. 10/621,768
OPINION
In reaching our decision in this appeal, we have carefully considered
the appellant’s specification and claims, the applied prior art, and the
respective positions articulated by the appellant and the examiner. As a
consequence of our review, we make the determinations that follow. It is
our view that, after consideration of the record before us, the examiner has
failed to make a prima facie showing of obviousness-type double patenting
of the claimed invention in view of claims 1-24 of Moody in view of Gajor.
In the rejection of independent claim 1, the examiner has determined
that the patented claims 1-24 of Moody “set forth the same invention of
substantially the same scope as pending claim 1 except that the invention of
patented claims 1-24 lack the parlay feature.” The examiner relies on Gajor
for support that “it is well known in the art to use a parlay feature in game
play to provide players with additional wagering options.” (Examiner’s
Answer, p. 4). The examiner concludes, “[I]t would have been obvious to
one of ordinary skill in the art to modify the patented method of play of
claims 1-24 by including a parlay feature for game play in order to increase
the potential payout. (Examiner’s Answer, p. 5).
The appellant provides two arguments to rebut the obviousness-type
double patenting rejection. First, the appellant contends the invention of
claims 1-24 of Moody does not make any bonus event determinations based
on the final five card hand of the player. Rather, the bonus determination of
the Moody claims is based on the initial five cards in the player’s hand.
(Appellant’s Brief, p. 5). The appellant thus concludes that the examiner has
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