Appeal 2007-2064
Application 10/116,562
Co-inventor Charles W. Zimmer testifies that the claimed game is now being
offered in casinos in Las Vegas and Reno. The testimony is apparently being
offered as a secondary consideration in the form of unexpected results, commercial
success, long-felt need, copying by others, and skepticism of experts. The weight
to be accorded to such evidence depends on the facts of each case. Stratoflex, Inc.
v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed. Cir. 1983). Given that the
testimony is offered by a co-inventor, we do not view the statements as particularly
objective. Nonetheless, the testimony suffers from being completely anecdotal. Not
one fact is offered in support. In re Beattie, 974 F.2d 1309, 24 USPQ2d 1040, 1043
(Fed. Cir. 1992) (“the declarations themselves offer only opinion evidence which
has little value without factual support.”)
For example, Zimmer’s first Declaration (p. 5, para. 17) states “[w]e noticed,
however, that the average revenue for the house on a per table basis increased
significantly, with revenue increasing over 50%.” However, the basis for reaching
this observation is never explained. We are not told whether this increase is any
different than what one would observe if the standard, or Webb’s, 3:2 Blackjack
game were offered instead. Other than to imply that the revenue from a 6:5 single-
deck Blackjack game increases house revenue, no supporting facts are presented
such that we may conclude that by lowering the standard 3:2 payoff for single-deck
Blackjack game to 6:5, an unexpected increase in revenue is obtained.
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