A claim that gates a bet on the user's location is abstract, and fifteen lines on GPS cannot make the gate inventive

2024-06-21Fed. Cir.

Beteiro, LLC v. DraftKings Inc., 104 F.4th 1350 (Fed. Cir. June 21, 2024) (precedential) (Stark, J., joined by Dyk and Prost, JJ.), Nos. 2022-2275, 2022-2277, 2022-2278, 2022-2279, 2022-2281, 2022-2283, affirming dismissals under Rule 12(b)(6) by the United States District Court for the District of New Jersey, Nos. 1:21-cv-20148, 1:21-cv-20155, 1:21-cv-20156, 1:21-cv-20158, 1:22-cv-00577 and 1:22-cv-01536 (O'Hearn, J.)

United States Patent Nos. 9,965,920, 10,043,341, 10,147,266 and 10,255,755, titled "Apparatus and Method for Facilitating Gaming Activity and/or Gambling Activity," claim a computer-implemented method of detecting a posting about a gaming activity, generating and transmitting a notification, receiving a bet message from a communication device that comprises a global positioning device and reports its location, determining whether the bet is allowed using that location, and processing the bet or its disallowance. Beteiro sued DraftKings and other sportsbook operators, and the district court dismissed six cases on the pleadings under Section 101 of Title 35 of the United States Code. The Federal Circuit affirmed. At step one the panel held the claims directed to "exchanging information concerning a bet and allowing or disallowing the bet based on where the user is located," citing generic information-handling steps, claims "drafted using largely (if not entirely) result-focused functional language," and the analogy of a casino teller confirming a patron stood on the Nevada side of the line. At step two it found no plausible allegation that GPS on a mobile phone was unconventional in 2002, the priority date: only fifteen lines of a specification of at least ninety-eight columns addressed it, with "no description whatsoever of any hardware or software for equipping GPS on a mobile device." The examiner's eligibility finding in prosecution did not shield the claims from Article III review.

What it changesThe pattern here is the pattern of most deployed artificial intelligence features: a sensor or model reports a fact about the user, and a rule permits or blocks an action on that fact. The decision treats the gate as a legal or business problem rather than a technical one, and treats the sensor as a conventional component unless the specification says otherwise in detail. For a product that gates behavior on a model's classification, the claim has to recite how the classification is made, and the specification has to describe the model, its inputs and its training in enough depth to read as something other than a bought-in part, because the court measured conventionality by column count. Pleading industry facts in the complaint does not substitute; the GeoComply and iPhone allegations were dismissed as divorced from the patent. An allowance over Section 101 during prosecution is no protection in litigation, so eligibility review of the portfolio should be run on the issued claims regardless of the file history.

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Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

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