On March 10,2 016, the Federal Circuit held that a new card game using conventional cards was an unpatentable abstract idea. In re Smith, No. 15-1664 (Fed. Cir. Mar. 16, 2016).
The patent application was entitled "Blackjack Variation" and was described as “a wagering game utilizing real or virtual standard playing cards.” The application claimed a "method of conducting a wagering game."
The Federal Circuit upheld the rejection of the claims under Section 101 because the claims cover "only the abstract idea of rules for playing a wagering game and use conventional steps of shuffling and dealing a standard deck of cards." The court noted that “Applicants’ claimed ‘method of conducting a wagering game’ is drawn to an abstract idea much like Alice’s method of exchanging financial obligations and Bilski’s method of hedging risk.” The Court analogized “the recitation of computer implementation” that fell short in Alice, to the shuffling and dealing a standard deck of cards as "purely conventional" activities which do not “supply a sufficiently inventive concept.”
The court, however, noted in dicta that some card games such as those claiming “a new or original deck of cards” could
potentially survive step two of Alice in order to be patent eligible.