Can I Patent a Card Game? Episode 131

Connection to Board Games

In the last episode, I talked about patenting a board game, and many of the same concepts apply when it comes to whether you can patent a card game.

Can You Patent a Card Game?

The short answer is yes—you can patent a card game. Again, your card game has to be new and non-obvious. Now, usually with board games, you have a new kind of board, new pieces, and rules that go along with them, and I talked about that in the previous episode.

For a card game, if you’re just using a standard deck of cards and want to patent the rules for a new game, there’s a good chance you’ll get a rejection based on the rules being considered an abstract idea. Remember, you can’t get a patent on a purely abstract idea or a mathematical formula.

In re Smith and Abstract Ideas

This is especially true given a court case that came out several years ago called In re Smith from the Federal Circuit in 2016. This involved a patent application for a blackjack variation that got rejected. If you want to look it up, it’s U.S. Patent Application Number 12/912,410.

The inventors came up with a new way of playing blackjack, but it involved a standard deck of cards. There were nine steps to the game, labeled A through I. I’m not going to go through all of them, but they involved shuffling a standard deck, dealing the deck in a certain way, placing additional bets along the way, and additional dealing that was different from the standard blackjack rules.

The court said that the particular physical steps—such as shuffling and dealing—are conventional elements of card gambling and therefore insufficient to transform the claimed abstract idea into a patent-eligible invention. The court also said that the claim was effectively a method of exchanging and resolving financial obligations based on probabilities created during the distribution of the cards.

The Alice and Bilski Decisions

This case came after a couple of other cases that are the bane of every patent attorney’s existence—Alice and Bilski. In Alice, the Supreme Court held that a method of exchanging financial obligations was an abstract idea and not patentable. In Bilski, the Court said that a method of hedging risk was also directed to an abstract idea.

Basically, these cases made it much more difficult to get patents on business methods, and the courts are still trying to figure out what is patentable and what isn’t.

What the Court Said About Card Games

Regarding the card game in In re Smith, the court said that just shuffling and dealing cards wasn’t enough to make the game patent-eligible. But the court did specifically state that this doesn’t mean all gaming is ineligible. They gave an example of using a new or original deck of cards as something that could potentially be patent-eligible.

Current Strategy: Create a New Deck

So, if you come up with a card game and want to patent it—at least if you want to follow current law (and who knows if it will change, because patent eligibility is always being challenged)—then don’t plan on getting a patent if it’s just new rules. Make a new deck of cards.

You can always file a patent application just for your rules of playing a card game with a regular deck, and who knows—by the time it gets examined, maybe the law will have changed. But until then, expect a rejection that will be difficult to overcome.

I’m Adam Diament, and until next time, keep on inventing.