On June 4, 2018, Groove Digital filed a lawsuit in the District Court of Delaware alleging King.com infringed upon U.S. Pat. No. 9,454,762 (the '762 Patent), titled "System and Method for Delivery of Content to a Network Device." Groove Digital claims the '762 Patent relates to push notifications for mobile apps. In the Complaint, King's game, Candy Crush Saga, infringes upon the '762 Patent.

Claim 1 of the '762 Patent reads:

A system for delivering information to a networked device of a user, the system comprising:

a microprocessor running a software application for delivering an applet application to the networked device and managing the delivery of the applet application to the networked device, wherein the applet application passively deploys one or more applets at a time of deployment,

wherein the applet application provides for delivery of content to the networked device and a display of the content in a predetermined portion of a user display that is less than an entire display of the networked device, by the one or more applet, wherein the one or more applet is configured to deploy at least one of independent of or in conjunction with an internet browser window, wherein an internet browser is configured to deploy subsequent to deployment of the one or more applets based on at least one action or inaction of the user, wherein at least one of the applets is configured to become idle upon deployment of the internet browser, and wherein the deployment of the one or more applets is such that at the time of deployment of the one or more applets the user can continue to operate the networked device in a state prior to the deployment of the one or more applets;

a first database coupled to the microprocessor and storing a first set of information relating to the user; and

a second database coupled to the microprocessor and including a second set of information for comparison to the first set of information,

wherein the microprocessor compares the first set of information to the second set of information to determine whether the content should be transmitted to the networked device for display by the one or more applets. ('762 patent, col. 14, lines 9-43).

The '762 Patent has an interesting prosecution history. Samuel Gaidemak and Paul Chacko filed the '762 Patent on March 17, 2006, but the USPTO did not issue the patent until September 27, 2016. During those ten years, the PTO issued eleven office actions against the '762 Patent. On average a patent will face three or four office actions. The more office actions a patent faces, the more prosecution history estoppel the patent acquires, which is used to narrow the patent's claims and restrict the owner's use of the doctrine of equivalents. Groove Digital is asserting the doctrine of equivalents in addition to allegations of literal infringement. King has not yet filed an Answer in response to the Complaint.

Groove Digital is also suing United Bank for infringing the '762 Patent. Normally, we do not report on non-video game related case, but this is the only other lawsuit in which the '762 Patent is asserted. Groove Digital filed the lawsuit against United Bank on December 1, 2017, in the Eastern District of Virginia. The Complaint in that lawsuit alleges that United Bank's mobile banking app infringes the '762 Patent by using push notifications, and the Complaint filed against United Bank is very similar to the Complaint filed against King. United Bank has only filed a motion to dismiss for lack of jurisdiction. These lawsuits against United Bank and King could be the start of Groove Digital suing every mobile app developer that uses push notifications, so it will be interesting to see if Apple takes notice (in view of the integrated push notification technology built into iOS).

We will continue to follow Groove Digital's lawsuit against King and provide updates when available.

The '218 Patent is related to U.S. Patent 7,666,096 (the '096 Patent), also owned by Techno View and also subject to an IPR petitioned by Sony. Both the '218 and '096 Patents are at the center of a lawsuit Techno View filed against Sony in the Central District of California, in which Techno View alleges that Sony's PlayStation VR infringes Techno View's patents. Sony is using the IPRs to challenge the validity of the allegedly infringed patents. Techno View is also suing Oculus VR claiming their VR system infringes the '218 and '096 Patents. Oculus was not part of the IPR petitions filed by Sony.

This is the third IPR petition Sony has filed this year relating to stereoscopic images. For background on the previous two IPR petitions click here and here.

On January 17, 2018, U.S. District Judge John Michael Vazquez of the District of New Jersey dismissed all patent infringement claims asserted by Joseph Scibetta (a/k/a “Bankers & Brokers”) (“Scibetta”), against Slingo, Inc. and RealNetworks, Inc. (collectively, “Slingo”).  The reason: none of Scibetta’s patents survived scrutiny 35 U.S.C. § 101.

Scibetta is the owner of various intellectual property rights relating to a card and casino game called “BANKERS & BROKERS.”   U.S. Patent No. 6,220,597, one of the patents asserted in the case, describes the game in detail:

1. A method for playing a wagering card game comprising the steps of:
   Providing a shuffled stack of playing cards where the cards are touched only by the dealer during the game comprising at least one deck thereof;
   providing a planar game playing surface comprising a plurality of separately delineated areas adapted for the placement of bets;
   establishing odds for payout of winning bets placed in any of the aforesaid plurality of separated and delineated areas;
   establishing an initial order of play where players are designated as first player, and so on to a last player;
   initiating a round of play by a first player establishing a bet by placing a wager in a designated space on the table near a pot designated and marked onto a surface for displaying a face-up side of a card dealt to each said player;
   dealing a stack of six face-down cards as a player's pot concealing the faces of each dealt card from each player and a dealer, to the first player and any other player in the game;
   dealing a stack of six face-down cards, concealing the faces of each dealt card from each player and the dealer, to the dealer as a dealer's pot;
   then, only the dealer turning the dealer's pot over and turning over the pots over for each player one at a time;
   then the dealer immediately determining a player's winning status or loss status by comparing a face-up card dealt to each player and a now face-up card dealt to the dealer in the dealer's pot;
   after comparing a dealer's face-up card to a player's face-up card, paying any winning bets placed by each player in the game;
   collecting the played or turned up cards from each pot after bets are paid and placing these cards in a discarded cards designated area on the table;
   determining whether the turned-up dealer's card matches the corresponding turned-up player's card, whereby at any time during the game or before the dealer may imposed step of disqualifying and discarding any got touched by a player.

The other asserted patents (U.S. Patent Nos. 6,626,433, 7,331,580, 7,618,044, and 7,857,314) are similar.

Slingo is alleged to have distributed an unlawful copy of BANKERS & BROKERS on their website slingo.com, which was later acquired by RealNetworks, Inc. The alleged copy of BANKERS & BROKERS is reproduced below (as retrieved from archive.org).



On December 12, 2016, Slingo moved to dismiss Scibetta’s case.  Among other assertions, Slingo claimed that all of Scibetta’s patents were invalid under 35 U.S.C. § 101.

The Court agreed. With regard to Alice step one, the Court noted that Scibetta’s asserted patent claims were substantially similar to the “method of conducting a wagering game” patent found invalid in In re Smith, 815 F.3d 816 (Fed. Cir. 2016), cert. denied sub nom., Trading Techs. Int’l, Inc. v. Lee, 137 S.Ct. 453 (2016).  Indeed, the Court noted that “there is no meaningful distinction between, on the one hand, the unpatentable abstract idea found in In re Smith and, on the other hand, the method and system claims here.”  Per the Court, the fact that some claims recited, among other things, a “‘means’ for identifying player/dealer positions” did not “change the fact that [BANKERS & BROKERS] stems from a patent ineligible abstract idea.”

With regard to Alice step two, the Court found that BANKERS & BROKERS “reflects well-understood, routine, and conventional wagering activity” such that “Plaintiffs made no technical improvement on the original abstract idea of a card wagering game using a standard deck of cards.”  The mere implementation of such a game on a computer did not change the Court’s analysis: “the claims do nothing more than simply describe the application of the game-related abstract ideas to a generic computer system.”

Scibetta’s case is not doomed.  Scibetta still has a viable claim for misappropriation against Slingo.  Moreover, while Scibetta’s trademark and unjust enrichment claims were also dismissed by the Court, the claims were dismissed without prejudice and largely based on pleading deficiencies.  As such, Scibetta will be afforded an opportunity to amend and supplement his complaint.

This case illustrates the difficulties of enforcing patents that, despite their presumption of validity, were granted prior to the Alice decision when the USPTO was using a different standard of examination.  A trend is appearing where the presumption of validity applied to those patents by courts appears to be inherently lower than that given to more recently granted patents.  Scibetta asserted five patents, and not one survived a motion to dismiss.  Those looking to acquire patent portfolios, for example, should be particularly wary of purchasing patents which may look great but may face significant hurdles during enforcement.  Sometimes, a single strong patent is worth more than a hundred unenforceable ones.

Many video games have focused on space exploration; this premise is hardly unique. The novelty with "No Man’s Sky", and the reason for so much excitement and anticipation over its imminent release, lies primarily in the ambitious size of the universe available for exploration in the game. In traditional video game programming, objects that make up the in-game environments must be created individually by writing numerous lines of code into the game for each asset or piece of art — a labor-intensive and time-consuming process limiting the number of objects that can be included in one game.

Hello Games ostensibly avoids these issues by using a programming technique known as procedural generation. Rather than drafting unique lines of code to create each game asset, procedural generation provides a computer with a system of rules and parameters for the game universe, and then relies upon the computer to create in-game assets in accordance with those rules. In other words, each object in "No Man’s Sky" is created not by individual lines of code written specifically for that asset by a programmer, but instead is created by the computer applying algorithms created by the programming team. These procedural rules could cover everything from the way interstellar and spaceship physics work, to the way vegetation looks on planets with particular climates, to the types and behaviors of wildlife. Using this technique, Hello Games has created an in-game universe of unprecedented size and scope, containing 18,446,744,073,709,551,616 accessible planets.[5]

In late July, the media began to report that a company called Genicap had raised the possibility that "No Man’s Sky" might be running afoul of Genicap’s patent rights in the Superformula. The Superformula is a modified version of the equation that describes a circle, and it was discovered by Johan Gielis around the turn of the 21st Century. Changing particular variables within the Superformula causes the equation to describe all manner of geometric shapes and natural forms.[6] Genicap (Gielis’ employer) received U.S. patent No. 9,317,627 (the “‘627 patent”) on April 19, 2016. The ‘627 patent’s primary claim describes the Superformula as “a method for creating timewise display of widely variable naturalistic scenery ... on an amusement device with minimized data storage and processing requirements ... ”

Salt Lake City, Utah.  June 2, 2016.  U.S. District Judge Jill N. Parrish granted Electronic Arts Inc.’s motion to dismiss, saying that Utah-based White Knuckle Gaming LLC cannot sue for patent infringement because the patent at issue — which describes a method for updating sports videos games to reflect real-world changes like statistics, athlete appearances and uniforms — covers an abstract idea and does not include any additional elements that transform the claim into patent-eligible material.
“It is a longstanding business practice in the video game industry to update sports video games parameters to reflect real-world developments,” Judge Parrish wrote.

According to Judge Parrish, the patent doesn’t have any additional elements that transforms the abstract idea into an inventive concept because it doesn’t rely on anything other than generic computer equipment in order to be accomplished.

“The court holds that the patent is drawn to a patent-ineligible abstract idea, and merely requiring generic computer implementation fails to transform that idea into a patent-eligible invention,” Judge Parrish wrote.

The patent-in-suit is U.S. Patent Number 8,540,575 titled “Method and System for Increased Realism in Video Games.”  One interesting thing about this case is the length of the claims that were invalidated.  For example, representative claim 1 reads:

1. A game medium configured to provide a sports video game in conjunction with a video game machine, the sports video game including video game rules and video game character parameters, the video game character parameters including video game character performance parameters associated with individual video game characters, the game medium being configured to cause the video game machine to perform a method comprising:

loading video game data stored by the game medium into a random access memory of the video game machine for playing the video game, the video game data including the video game rules and a particular video game character performance parameter associated with a particular individual video game character associated with a particular real-life sports athlete, wherein the particular video game performance parameter is based at least in part on a real-life performance of the particular real-life sports athlete playing in one or more real-life sporting events, the particular video game character performance parameter affecting the manner in which the particular individual video game character performs in the sports video game;

during a single sports season, receiving a series of updated video game character performance parameters from a data server via a network including the Internet, wherein each of the updated video game character performance parameters in the series is based at least in part on one or more different real-life performances of the particular real-life sports athlete in one or more sporting events performed during the single sports season; 

updating the sports video game with each of the updated video game character performance parameters received, wherein each update changes the manner in which the particular individual video game character performs in the sports video game such that the particular individual video game character more closely simulates real-life performance attributes of the particular real-life athlete in the sports video game; and 

enabling a user to control the particular individual video game character in the sports video game using a video game controller connected to the video game machine.

This is a case that will be closely and heavily scrutinized in the wake of Alice v. CLS Bank.  Many practitioners will use this case as more fodder to try to read the tea leaves in the winds of change that is Federal jurisprudence on patent-eligible subject matter.

White Knuckle Gaming will likely appeal.  Along with the McRO case currently pending at the Federal Circuit, this could be another pertinent case in the world of video game patents.

Summary:

The ‘153 patent deals with video game systems with two forms of media. The first media contains information about a game and the second media stores information about a particular character. The patent describes a process of swiping cards or selecting characters from an external media source on which an individual character and that character’s attributes are stored. The media is updated with experience, skills, or rewards according to player success in using that character from that media source in a particular game. The patent allows for single or multi- player games that are competitive or cooperative.

Abstract:

Video game systems for executing instructions according to a video game contained on an item of first media including: an item of second media containing data defining an aspect of the video game; and a video game console including a housing, a first media device supported by the housing, a second media device supported by the housing, and a control unit supported by the housing and configured to control the first media device to read the item of first media and to control the second media device to read the item of second media.

Illustrative Claim:

1. A method of operating a video game involving multiple characters playable by multiple players, the method comprising the steps of:
       displaying an environment of the video game on a display screen;
       displaying an icon on the display screen during the video game;
       receiving, by a media device, an input from a first one of the players who provides an item of media after the icon is displayed; and
       attributing a reward associated with the icon with the character being played by the first player.

Summary:

The ‘476 patent deals with virtual realities and augmented realities that rely on real world data to create the virtual world. The player’s location in the real world is tracked using GPS or some other location tracking device, such as a play mat, while the player uses some manner of virtual reality headset. The game uses that location and movement from that data to correlate with location and movement in a virtual world. The augmented reality may rely on visual input from the real world with supplementary elements added by virtual reality. The patent covers both major movements, such riding in a driving a car or traversing a field, and minor movements, such as hand movements.

Abstract:

Handheld location based games are provided in which a user's physical location correlates to the virtual location of a virtual character on a virtual playfield.

Augmented Reality (AR) systems are provided in which video game indicia are overlaid onto a user's physical environment. A landscape detector is provided that may obtain information about the user's landscape, in addition to the user's location, in order to provide overlaying information to an AR head-mounted display and control information to non-user controlled video game characters.

transmitting a fantasy team roster associated with a particular fantasy team to the video game console, wherein the video game console is programmed to create a video game team including a plurality of video game characters corresponding to at least a portion of the members of the fantasy team roster to be played in the sports video game on the video game console, wherein the video game characters of the video game team are associated with the same real-life athletes that are associated with the fantasy team members of the fantasy team roster transmitted, wherein the fantasy team owner is not one of the real-life athletes engaging in the real-life sporting events who are associated with the fantasy team members.

stopping the protecting of the one player's game character in response to one or more protecting stopping conditions, whereby the movements of the one player's game character in the game world are controllable in accordance with the first game character control operation for that game character.

mapping said user determined location information into a video game environment wherein the user of said video game experiences objects from the entered real world physical location, wherein said user traverses said video game environment while playing said video game, wherein said user of said video game is stationary in said real world and wherein all images acquired from said continuous pre-recorded actual video remains exactly as presented in the real physical world into the video game.

an event module configured to manage a first set of events associated with the first content set, and to determine if the player has successfully participated in individual events in the first set of events, and wherein the first set of criteria associated with the first content set requires successful performance of some subset of the first set of events as determined by the event module.

whereby skin of the first player touching skin of the second player closes a circuit between the first and the second conductive materials and the microcontroller, said circuit closing causing the microcontroller to send a signal to the CPU or the game console thereby causing said CPU or gameconsole to display a video game having at least one game object that responds in accordance with the signal.