Konami, no stranger to invalidity challenges against their video gaming patents, recently had four more patents directed to slot machines struck down as directed to abstract ideas.

On Feb. 21, 2018, the U.S. District Court for the District of Nevada granted summary judgment for defendant High 5 Games, LLC (“High 5”) against plaintiff Konami Gaming, Inc. (“Konami”).  The Court, dismissing Konami’s case, found all four of Konami’s asserted patents invalid as directed to unpatentable subject matter.

In the case, Konami alleged infringement of four patents: U.S. Patent Nos. 8,096,869, 8,366,540, 8,662,810, and 8,616,955. All asserted patents generally relate to slot machines, and High 5’s allegedly infringing products included various online and “land-based” slot machine games featuring a “Super Stack” feature (including, inter alia, “Bah, Humbug,” “Bollywood Bride,” “Dangerous Beauty,” “Diamonds of Athens The Dream,” “Shadow of the Panther,” and many others).
Claim 1 of the ’869 Patent reads:
1. A gaming machine comprising:
   a processor configured to execute a game displaying a matrix of symbol containing elements having a plurality of rows and a plurality columns;
   at least one column of said matrix comprising a portion of a simulated rotatable reel of a plurality of said symbol containing elements;
   said simulated rotatable reel comprising sections of symbol containing elements displaying a plurality of symbols that are fixed for each game played on said gaming machine;
   said simulated rotatable reel including at least one section in which a consecutive run of three or more of said symbol containing elements is populated by an identical symbol so that, as the simulated rotatable reel rotates, a consecutive string of said same identical symbol is sequentially displayed within said consecutive string of symbol containing elements; and
   said identical symbol is randomly selected anew for each play of said game, wherein said identical symbol is selected by virtually spinning a notional, non-visible, inner reel comprising a subset of said plurality of symbols.
After a lengthy discussion of claim construction, the Court found Konami’s patents’ claims “individually and collectively” invalid for abstractness.  Per the Court, the claims “perform the functions of what may be described as an aesthetic variation on a play of the game” because “the primary focus of the patents, as acknowledged even by Konami, is displaying a consecutive run of a randomly selected identical symbol in one reel of the simulated digital reels in each iteration of a game as a means of increasing interest in the game and ‘increasing probability of a winning outcome.’”  The Court was unpersuaded that the claims recited more than this idea: “[c]hanging how often a symbol appears and where it appears in a slot game without more is simply altering the manner of display of random symbols – i.e. changing the rules of the game.”

This decision underscores the continued impact of the Supreme Court’s 2014 decision in Alice v. CLS Bank.  In this case, the Court was clear: “changes to game rules of a generic slot machine using conventional technology are not patentable.”  Such a ruling may suggest that patents directed to game play rules may also be invalid as directed to abstract ideas.  Patentees may improve their likelihood of surviving similar challenges by, where possible, tying their claimed inventions to technology and technical problems.
Hello Patent Arcade readers. Something a little different today. An old friend from law school has published his own book:

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On Feb. 8, 2018, Pure Data Systems, LLC (“Pure”) sued Electronic Arts, Inc. (“EA”) and Ubisoft, Inc. (“Ubisoft”) for alleged infringement of U.S. Patent Nos. 5,999,947 to Zollinger et al. and 6,321,236 to Zollinger et al.  

Claim 1 of the ’947 Patent reads:
1. A method of distributing database differences corresponding to change events made to a database table located on a server computer to client copies of the database table located on one or more client computers comprising the steps of:
  creating and storing on the server computer one or more sequentially versioned updates, each update containing database differences in a generic format, the database differences corresponding to database change events made to the database table since the preceding update;
  receiving, from a client computer, a request for all the database differences needed to make the client copy of the database table current;
  determining which updates are necessary for making the client copy of the database table current;
  ascertaining a client database engine type wherein the client copy of the database table is held;
  generating and translating specific database differences, selected based on the necessary updates, into instructions based on the ascertained database engine type prior to transmission; and
  transmitting the specific database differences to the client computer so that the client computer may execute the instructions on the client database engine, thereby making the client copy of the database table current in response to the specific database differences translated into the instructions.
Pure claims that EA and Ubisoft infringe their patents via their “game library updates.”  For example, “if a user purchases a game through the [EA’s] Origin website using a browser, the user’s game library is updated on a server” such that “[w]hen the user next logs into the Origin client, those updates are transmitted to the Origin client running on the user’s computer.”

The lawsuits against EA and Ubisoft are different, likely due to venue issues, but the complaints are almost identical. Pure appears to have also filed similar complaints against Valve Corporation, the Fox News Network, Imgur, CNET, CNN, and Pinterest, among others.  
On Feb. 7, 2018, Nintendo Co., Ltd. and Nintendo of America, Inc. (“Nintendo”) filed two petitions for Inter Partes Review of U.S. 6,219,730 to Nguyen, a patent owned by Genuine Enabling Technology LLC (“Genuine”). 

The challenged ’730 Patent relates to user input:

1. A user input apparatus operatively coupled to a computer via a communication means additionally receiving at least one input signal, comprising:
   user input means for producing a user input stream;
   input means for producing the at least one input signal;
   converting means for receiving the at least one input signal and producing therefrom an input stream; and
   encoding means for synchronizing the user input stream with the input stream and
   encoding the same into a combined data stream transferable by the communication means.
According to Nintendo, the ’730 Patent is anticipated at least in part by the practice of “bit-robbing” which, in short, involves combining an existing signal (e.g., an audio signal) with other signals (e.g., input signals) such that a single data stream could be used to transmit multiple types of data from multiple input.  For instance, Fig. 1B of the ’730 Patent depicts plugging a microphone and speaker into the mouse, in effect combining audio and input data streams:

The use of means-plus-function language may make these claims narrower in scope than they look at first glance.  Before granting Nintendo’s IPR petition, the USPTO Patent Trials and Appeals Board (“PTAB”) will have to figure out what structure is required by the claimed means, and whether Nintendo’s prior art shows that structure.

Nintendo’s Petition for Inter Partes review comes on the heel of the case Genuine Enabling Technology LLC v. Nintendo Co., 1:17-CV-00134-MSG, filed in the District of Delaware on Feb. 8, 2017.  In that case, Genuine asserts that Nintendo’s Wii Remote infringes the ’730 Patent. Per Nintendo, Genuine has also sued Sony for infringement of the same patent.
On Feb. 1, Sony Interactive Entertainment, LLC (“Sony”) filed a Petition for Inter Partes Review of U.S. Patent No. 9,503,742 (the “’742 Patent”).  The prosecution history of the ’742 Patent is not something you see every day: a dispute over a typographical mistake followed an allowance because, despite an admittedly valid rejection, “applicant wishes to obtain a patent.”

As described by Sony, the ’742 Patent relates to stereoscopic image decoding via data compression.  It seems likely that Sony’s filing of the Petition for Inter Partes Review relates to their sales of PlayStation VR headsets.

Strangely, the ’742 Patent has only one claim, which Sony claims should have never been allowed.  According to Sony, during prosecution of the ’742 Patent, the patent examiner made a typographical mistake in an office action: forgetting to cite U.S. Patent No. 5,907,364 to Furuhata et al. (“Furuhata”) to reject dependent claim 23, though Furuhata was cited to reject the independent claim from which claim 23 depended.  On appeal, the Board affirmed all of the examiner’s rejections except for claim 23, noting that the examiner’s error was “perhaps inadvertent” and opening the door for a correction of the rejection.  Perplexingly, the examiner then allowed claim 23, noting in the Notice of Allowance:
The omission of the Furuhata reference appears to be a typographical mistake . . . Examiner informed applicant’s representative that claim 23 should have been affirmed by the board for the same reasons as set forth for claim 1. However, applicant’s representative informed Examiner that applicant wishes to obtain a patent since claim 23 was reversed by the board.
It will certainly be amusing to see what the Board has to say about the above allowance.
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