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U.S. Patent No. 7,722,048: Mini-hold ‘em games
Issued May 25, 2010


Summary:

Here’s one for all of you online poker fans. The ‘048 patent describes a virtual game of poker that a gamer could play against a friend or the computer. The patent describes a virtual Texas Hold ‘Em game where the each participant (whether computer or human) receive two cards that only they can see. Then the table shares a pool of cards while trying to make the best hand possible using the two cards each player was dealt, plus three of the cards shared by all of the players. Wages can vary based upon the betting strategy of every player. The player is also able to fold and is not forced to continue on unless he chooses to.

Abstract:

A playing card wagering game has a player hand compete against another player hand according to three-card poker rank or a player hand compete against a dealer hand. At least one or two players place a first wager on the card wagering game and an optional second side bet wager. The player hand begins with two respective hole cards and all player hands are completed with community playing cards dealt in sets of cards. Relative rank of the players' hands is determined. The first wager is resolved based upon the determined relative rank by determining which player hand(s) wins. The second wager is resolved according to rules that comprise comparing rank of each player's hand to a paytable.

Illustrative Claim:

1. A method of playing a playing card wagering game in which a player hand competes against at least a dealer hand at a table according to a three-card poker rank of the player hand wherein: at least one player places a first ante wager on the playing card wagering game; each player and the dealer receives exactly two physical playing cards as hole cards viewed by only the player receiving hole cards and each player evaluating respective hole cards, while the dealer hole cards remain concealed; each player placing a second wager on the card wagering game to remain in the game or not placing a second wager and folding as a first round of wagering; after the first round of wagering, a flop of physical playing cards as an only single set of physical playing cards as community cards is provided for all players and the dealer to use in combination with respective hole cards to determine respective player at least intermediate hand rank; each player placing a third wager on the card wagering game to remain in the game or not placing a third wager and folding as a second round of wagering after viewing the flop of the only single set of community cards; after the second round of wagering, a second at least one physical playing card as a second set of community cards is provided for all players and the dealer to use in combination with respective hole cards and the flop to determine respective player at least intermediate hand rank; each player placing a fourth wager on the underlying card game to remain in the game or not placing a fourth wager and folding as a third round of wagering after viewing the second at least one physical playing card as a second set of community cards; after an ultimate number of exactly three physical playing cards as community cards have been separately provided as sets for use by each player and the dealer, and wagering has been completed, comparing player hand ranks of only three-card poker rank against a dealer hand rank of only three-card poker rank to determine a player or players with highest rank of hand as compared to the dealer, and paying such highest rank of hand against the dealer players at least 1:1 on all wagers on the card wagering game.


U.S. Patent No. 7,727,064: Interactive bingo gaming system and method
Issued June 1, 2010, to Bally Gaming, Inc.


Summary: 

The ‘064 patent describes an interactive way to play a classing game of Bingo. Each game is charged to the player at the cost of a certain number of credits. The credits can be purchased by the user before the game. The reward of wining one of the Bingo games is a certain number of credits which the player could use to play other games of Bingo. The payout of the winnings varies based upon a graduated weighing function which weighs probabilities differently based on the circumstances of the game. The riskier the gamble, the higher the payout will be. The two types of games offered are four-corner Bingo and blackout Bingo.

Abstract:

A system and method of playing an interactive bingo game. Each game session comprises a plurality of game events in which the bingo game draws at least one bingo number from a set of bingo numbers. The player is provided with one or more bingo cards. The game drawn bingo numbers are matched to the bingo cards and the player is awarded a prize according to a dynamic paytable. The dynamic paytable depends on a plurality of dynamic variables that are modified during the game session. The dynamic paytable further comprises a plurality of triggering events that are associated with a plurality of bingo patterns, and a threshold event that is engaged after one or more triggering events. The threshold event is configured to determine a plurality of prize credits awarded for each subsequent bingo pattern. For the chargeable action embodiment, the player is charged one or more credits for each of the game events and the credits that are charged are determined by said player. For the average bet embodiment, the player is only charged at the beginning of the game session.

Illustrative Claim:

1. A method of playing an interactive bingo game, comprising: initiating a game session on a gaming device that comprises, a plurality of game events corresponding to the game session, a chargeable credit game condition, in which a first player selection is received for charging at least one credit for each game event; providing on a player interface, a player a bingo card having a plurality of integers configured in a grid pattern; performing the game events on the gaming device so that each game event comprises having the interactive game draw at least one bingo number from a set of bingo numbers; charging a player a quantity of credits obtained from an input component of the gaming device for each of the game events according to the chargeable credit game condition; awarding by the gaming device to said player one or more prizes according to a dynamic paytable that depends on a plurality of dynamic variables that are modified after each game event that charges according to the chargeable credit game condition, the dynamic paytable comprising, a plurality of payouts wherein each payout is associated with a corresponding game event, a plurality of triggering events wherein each triggering event is associated with one of a plurality of bingo patterns, a threshold event that is engaged after one or more triggering events, said threshold event configured to determine a plurality of prize credits awarded for each subsequent bingo pattern; repeatedly displaying each payout for the corresponding game event; repeatedly modifying the payouts during the game session for each game event so that each payout is modified according to a graduated weighting function that weighs probabilities more favorably as more game events are played during the game session; and enabling the dynamic paytable to be modified after each game event according to an equation: PAY(I)=ROI*ABET*WGT(I)*AL(IHIT)/PR(I) where, PAY(I) is a payout for a bingo pattern; ROI is an overall payback percentage; ABET is an average bet; WGT(I) is a graduated weighting function that weighs probabilities more favorably for game events that occur at the end of the said game session; AL(IHIT) is a pay allocation weighting function that determines the percentage of the total prize awarded for the bingo pattern; and PR(I) includes a probability for the next game event, wherein the next game event is the bingo number picked from the set of bingo numbers.


U.S. Patent No. 7,731,590: Creation of ranking table for competitive game
Issued June 8, 2010, to Nintendo Co. Ltd.


Summary:

The ‘590 patent describes game apparatuses that are connected in a peer-to-peer manner that allow a player to play against opponents. During gameplay the apparatuses award points to the winner of each match. These points are accumulated and tallied on a server so they can be used to match up players in the future. The apparatuses attempt to match up users with similar stats to make the game more interesting and challenging for the players. The apparatuses also rank the scores of the players so that individual players can look to see where they rank in comparison to other users.

Abstract:

Game apparatuses connected in a peer-to-peer manner play a competitive game with each other. Each of the game apparatuses stores a ranking table ranking points of multiple users based on past games of the users. When finishing playing the game, the game apparatuses respectively calculate points obtained by the respective users based on the result of the game, and update the ranking tables based on the newly calculated points. The game apparatuses transmit and receive information on the updated ranking table to and from each other. Each game apparatus integrates the ranking table locally stored with the ranking table transmitted from the other game apparatus to generate a new ranking table, and displays the new ranking table on a display device.

Illustrative Claim:

1. A game apparatus, which is connectable to an other game apparatus in a peer to peer manner, for executing a competitive game with the other game apparatus having functions of executing the competitive game and generating a ranking of scores obtained in the competitive game, by causing a communicator to transmit information to, and to receive information from, the other game apparatus, the game apparatus comprising: a game executor that executes a current game of the competitive game with the other game apparatus while causing the communicator to transmit and receive information on the current game to and from the other game apparatus; a local score determiner that determines a current score obtained by a user of the game apparatus based on a result of the current game executed by the game executor; a ranking storage that stores user ranking information that ranks at least one previous score previously determined by the local score determiner in a past game of the competitive game and other scores obtained by other users in other past games of the competitive game; a ranking information obtainer that obtains opponent ranking information of an opponent user of the other game apparatus by causing the communicator to receive the opponent ranking information stored in the other game apparatus of the opponent user; a ranking integrator that integrates the current score determined by the local score determiner, the user ranking information stored in the ranking storage prior to the current game being executed by the game executor, and the opponent ranking information obtained by the ranking information obtainer, to generate new ranking information and to store the new ranking information in the ranking storage; and a ranking output that outputs the new ranking information integrated by the ranking integrator and stored in the ranking storage, wherein the ranking storage stores ranking information for a predetermined number of scores, the new ranking information, integrated by the ranking integrator, includes the predetermined number of scores, and when a number of scores to be integrated by the ranking integrator is greater than the predetermined number of scores, the ranking integrator includes a stored history ranking user selector that selects, from among scores included in the opponent ranking information, a score of a user that is included in the user ranking information that was stored in the ranking storage prior to the current game being executed by the game executor to be included in the new ranking information in priority to other scores included in the opponent ranking information.


U.S. Patent No. 7,690,997: Virtual environment with formalized inter-character relationships
Issued April 6, 2010, to Leviathan Entertainment, LLC


Summary:

The ‘997 patent provides for a virtual environment where a user is able to interact with other people in the digital world. The user can request to enter into a formalized relationship with another player. The user then has a set of appropriate actions that can be taken in relation to the other player. If the user acts inconsistently with these approved actions, the relationship between the two players is terminated. The patent seeks to create a massive multi player online game (MMOG) that is fun and enjoyable for players even though no clear winner or loser is ever established.

Abstract:

Virtual environments in which multiple characters are allowed to form relationships wherein the relationships may provide various benefits as well as obligations are described. Systems and methods for forming, monitoring, and terminating the relationships are also described.

Illustrative Claim:

1. A method performed by a computer, the method comprising: providing, by a Video Game Central Server, a virtual environment accessible by a plurality of players, wherein the players are able to interact with the virtual environment and each other via characters; receiving, by the Video Game Central Server, a request from a first player character to enter into a formalized relationship with a second character; determining, by the Video Game Central Server, if the first player character is qualified to enter into a formalized relationship with a second character; creating, by the Video Game Central Server, the formalized relationship between the first player character and the second character; monitoring, by the Video Game Central Server, the actions of the first player character in the virtual environment; determining, by the Video Game Central Server, if an action taken by the first player character is inconsistent with the formalized relationship created between the first player character and the second character; automatically terminating, by the Video Game Central Server, the formalized relationship if an action taken by the first player character is inconsistent with the formalized relationship.

Brown v. Electronic Arts, Inc.
United States District Court for the Central District of California
Case No. 2:09-cv-01598

and
In re: NCAA Student-Athlete Name & Likeness Licensing Litigation
(Keller, et al v. Electronic Arts, Inc.)
United States District Court for the Northern District of California
Case No. 4:09-cv-01967

            On July 31, 2013, the Ninth Circuit Court of Appeals filed opinions in two separate, yet similar, cases involving Electronic Arts ("EA") and two of its popular football franchises, Madden NFL and NCAA Football.  In the first case, former NFL player Jim Brown (widely regarded as one of the best NFL players of all time) filed suit against EA claiming that its use of his likeness in its Madden NFL franchise violated §43 (a) of the Lanham Act (KEY POINT: The Brown case, as decided, is based on the Lanham Act).  Keller's case, meanwhile, was a putative claim brought against EA claiming that the popular NCAA Football franchise violated  his (and others in the class) right of publicity under California Civil Code §3344 and California common law (as opposed to the Lanham Act).  At first blush, these cases seem quite similar, yet the results were drastically different.  In Brown, the Court found that EA's use of Brown's likeness was protected under the First Amendment.  However, in Keller the Court ruled that EA could not defend on First Amendment grounds and denied EA's motion to dismiss.  This all depends on whether the alleged infringing content is a trademark under the Lanham Act, or an individual's Right of Publicity.  When analyzing an infringement claim under the Lanham Act, courts primarily apply the Rogers test which focuses on the artistic relevance of the trademark (or in this case, likeness) in relation to the creative work.  Conversely, a right of publicity claim tends to be evaluated using the transformative use test which places a heightened burden on a content creator to show that a person's likeness is incidental to the overall work.

Why such different results?
           
            One might except two cases arising from nearly identical facts to have similar results, but the choice of claims is what dictated the tests applied and the differing results.  The Ninth Circuit looked to Brown v. Entertainment Merchants Ass'n to establish that videogames are protected under the First Amendment as expressive works because they, "communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)."  Using this as a basis, the Court ruled that a §43 (a) Lanham Act claim fell within the Rogers test established by the California Supreme Court.  The Rogers test, established in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), is essentially a balancing test that seeks to weigh, "the public's First Amendment interest in free expression against the public's interest in being free from consumer confusion about affiliation and endorsement."  The Rogers test limits application of §43 (a) to expressive works,

[U]nless [the use of the trademark or other identifying material] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the [use of trademark or other identifying material] explicitly misleads as to the source or the content of the work.

In evaluating Brown's suit against EA, the district court granted EA's motion for summary judgment on grounds that Brown had not alleged sufficient facts to satisfy either condition of the Rogers test.  In order to be "artistically relevant" under the Rogers test, the trademark (or in this case a person's likeness) must merely be "above zero".  The court reasoned that because EA prides itself, and the Madden series in particular, on its expressive goals of realism that Brown's likeness has, "at least some artistic relevance to EA's work."    The Court then looked to the second prong of the Rogers test and found Brown's argument lacking.  Under the second prong, a claimant must show that a defendant was explicitly misleading consumers as to "the source or the content of the work."  In this case, EA did not explicitly mislead consumers.  Although Brown is a famous NFL player, it is highly unlikely that any players of the Madden series would believe that he was "somehow behind [the game] or that [he] sponsors [EA's] product," because he is only one out of many stars included in the game.  While there may be some consumers who are mislead, their confusion cannot be attributed to an explicit representation by EA and therefore Brown's claim does not satisfy this facet of the test.

            Had Keller and the other parties to the class action suit brought claims under the Lanham Act, the result would have been similar.  However, because Keller involved claims of statutory and common law infringement of rights of publicity, the Ninth Circuit applied another test altogether.  EA attempted to defend on the basis of First Amendment freedom of speech via a motion to strike under California's Anti-SLAPP statute.  In order to prevail under the Anti-SLAPP statute the party asserting the defense must first make a prima facie showing that the suit arises from an act made by the defendant in connection with a public issue in furtherance of the person's "right of petition or free speech under the United States Constitution or the California Constitution."  It is uncontested that EA's Madden series satisfies this requirement in light of Brown v. Entertainment Merchants Ass'n.  However, the Court denied the motion to strike because EA did not satisfy the second requirement which requires the defendant have a likelihood of success on the merits.  The reasoning for this was that under the transformative use test, the Court believed that Keller had a legitimate claim against EA.
           
            Under the transformative use test, the California Supreme Court outlined five factors which should be taken into account when assessing whether a claimant's right of publicity has been violated.  These five considerations are whether:

(1) the celebrity likeness is one of the raw materials from which an original work is synthesized; (2) the work is primarily the defendant's own expression if the expression is something other than the likeness of the celebrity; (3) the literal and imitative or creative elements predominate in the work; (4) the marketability and economic value of the challenged work derives primarily from the fame of the celebrity depicted; and (5) an artist's skill and talent has been manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit the celebrity's fame.

The Ninth Circuit focused predominantly on No Doubt v. Activision Publishing to establish that EA's use of Keller's (and the other members of the class) likeness was not a transformative use.  Specifically, the Ninth Circuit reasoned that, like in No Doubt, EA represented Keller as, "what he was: the starting quarterback for Arizona State and Nebraska, and the game's setting is identical to where the public found [Keller] during his collegiate career: on the football field."  The focus on realism relied upon in Brown v. EA ended up being to EA's detriment in Keller under the transformative use test.  Unlike the Rogers test that requires artistic relevance to only be "above zero", the transformative use test requires a defendant to go further and create a work that is more than just a direct copy of a real-life person.  EA did argue that the Rogers test should be applied in this case as well.  The court, however, denied this argument reasoning that the Lanham Act and the Rogers test are in place to protect consumers from confusion, but the right of publicity is in place to protect the celebrity.

What is the effect on the games industry?

            Both of these decisions have significant repercussions for the gaming industry.  The Madden and NCAA franchises have long provided EA with predictable returns on their investment on a year-to-year basis, the increase in litigation is beginning to prove more trouble than it's worth for EA's partners.  Last month, the NCAA announced that due to  "the current business climate and costs of litigation" it would not be renewing its contract with EA which is set to expire in June 2014.  However, this could affect more than just EA.  The Keller decision in particular opens the door to litigation if any celebrity's likeness is utilized.  While parody exceptions will still likely cover most games that choose to employ a celebrity's likeness, this case sets precedent for potential legal woes.  More than that, the Keller decision in particular is a blow to game developers in that it is the first restriction on the First Amendment protections  to come out of Brown v. Entertainment Merchants Ass'n.

As always, we will monitor this case for new developments and update accordingly.
Innovention Toys v. MGA Entertainment et. al.
United States District Court for the Eastern District of Louisiana
Case No:  07-6510 (filed in 2009)

When we last reported on this case, it was remanded from the circuit court for a determination of regarding issues of non-obviousness.  The case has since gone to trial and a jury verdict was reached on November 9, 2012.  The jury was specifically asked whether the Defendants had proven that it is highly probable that the inventions claimed in the '242 patent would have been obvious to a person of ordinary skill in the field at the time of the invention.  The jury found for Innovention stating that the ordinary level of skill in the art covered by the '242 patent would have a Bachelor's Degree in Mechanical engineering rather than the higher standard the defendants proposed.  The jury also found that there were differences between the prior art and the asserted claim of the '242 patent, again in favor of Innovention.  Lastly, after evaluating certain objective factors, the jury determined that the combination of the Laser Chess/Advanced Laser Chess teachings with the Swift patent would not have been obvious to a person having an ordinary level of skill.  The jury then went on to determine that MGAs infringement was willful, and Innovation was awarded royalty damages in the amount of $167,455 and $1,405,708 in lost profits damages.

MGA filed a post-trial motion arguing that its infringement was not willful, but was denied.  Innovention also filed a motion requesting that the Court find that the infringement was willful; that enhanced damages, attorneys' fees, costs, expert fees, and interest should be granted; and that MGA be enjoined from further infringing the '242 patent.  The court denied MGA's motion and granted Innovention's in part finding that the infringement was willful; that Innovention is entitled to treble damages; that the case was exceptional allowing for the recovery of attorney's fees; that Innovention is entitled to taxable and non-taxable costs; that Innovention is entitled to $1,573,163 in pre-judgment interest; and that Innovention is entitled to post-judgment interest.


One of the more interesting aspects of this ruling was MGA's assertion that due to the game involving optics and lasers that the level of education necessary to practice the patent made it obvious.  At first blush, MGA's assertion holds some water in that a game using lasers is probably highly technical; however, experts in the case testified that just because there is a highly technical element involved in practicing a patent does not mean that the level of skill necessary must also be high.  Since those with a Bachelor's Degree in Mechanical engineering have some knowledge regarding optics and lasers, the level of skill was actually much lower than MGA claimed.  Another interesting part of the Court's order was the granting of treble damages due to the willful infringement on the part of MGA.  What is interesting is how much weight the court gave to MGA's "deplorable" behavior during litigation, citing MGA's filing of seven motions for summary judgment which were all denied as well as attempting to "frivolously" move for re-opening discovery post-trial.  The court also viewed this conduct in light of the "David-versus-Goliath" relationship between Innovention (a three-person company) and MGA a "toy behemoth with sales of $300 million in 2011."  The order granting the enhanced damages was entered in the United States District Court for the Eastern District of Louisiana on June 25, 2013.
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