Cantor Gaming’s patent infringement suits against many of the top providers of daily fantasy sports and social gaming are coming unglued due to claims being too “abstract.”
CG Technology Development dba Cantor Gaming and co-plaintiffs Interactive Games Ltd. and Interactive Games LLC in April filed separate but closely related federal patent infringements suits against FanDuel, DraftKings, Double Down Interactive, Big Fish Games, 888 Holdings, Zynga and Bwin.Party Digital Entertainment.
U.S. District Judge Robert C. Jones on Thursday dismissed Cantor Gaming’s claims against San Francisco-based Zynga as too abstract, but gave Cantor Gaming 30 days to file an amended complaint for its claim of infringement of U.S. Patent Number 6,966,832, which is a system and method for providing game advice to a user of a gaming application.
Jones, on Aug. 29, similarly dismissed abstract patent infringement claims against Big Fish Games, which Cantor Gaming renewed with an amended complaint. In dismissing the original complaint, Jones invalidated six of seven patent infringement claims and dismissed the causes of action for a seventh claimed patent infringement and willful infringement.
Cantor Gaming filed an amended complaint based on the six invalidated patent claims in the Big Fish Games complaint, but only with the intent to assert them upon a likely appeal.
The three of the six invalidated claims in that case are for U.S. Patent Numbers 6,899,628: system and method for providing game event management to a use of a gaming application; 7,534,169: system and method for wireless gaming system with user profiles; and 6,979,267: system and method for generating profile information for a use of a gaming application.
The other three invalidated claims are for U.S. Patent Numbers 8,342,924: system and method for providing enhanced services to a user of a gaming application; 7,029,394: system and method for generating statistics for a user of a gaming application; and 9,111,417: system and method for providing enhanced services to a use of a gaming application.
Jones also dismissed with leave to amend Cantor Gaming’s infringement claim against Big Fish Games for allegedly violating U.S. Patent Number RE 39,818, for a personalized wireless video game system.
Federal law and Supreme Court Rulings exclude abstract ideas, natural phenomena and laws of nature from being patent-eligible. To be patent-eligible, an item must be “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof,” according to the U.S. Patent and Trademark Office.
“The driving concern behind this exclusionary principle is one of pre-emption – ‘that patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity,’” Jones wrote.
He said abstraction alone is not enough to render an item patent-ineligible.
“’Applications of such [abstract] concepts to a new and useful end … remain eligible for patent protection,’ and courts must ‘”distinguish between patents that claim the building blocks of human ingenuity and those that integrate the building blocks into something more, thereby transforming them into a patent-eligible invention,’” Jones wrote.
To be patent-eligible, Jones said the Supreme Court adopted a two-step process that first determines whether the infringement claim is “directed at a patent-ineligible concept, such as an abstract idea,” and whether an “inventive concept” is enough to transform the abstract idea into a “patent-eligible application.”
Applying that process, Jones concluded most of Cantor Gaming’s infringement claims are for patent-ineligible concepts that are too abstract.
He said only Cantor Gaming’s RE 39,818 patent is patent-eligible, based upon its “tangible aspects,” but Cantor Gaming did not identify any infringing “device that defendant has offered for sale, sold, made, used or imported” in its complaints against Zynga, et al.
In its complaint against Zynga, Cantor Gaming says the popular Zynga Poker casino game violates eight patents, which are designed to enhance the “user experience within an online casino gaming environment, especially by allowing users to play casino games on mobile computing devices in an online community,” Jones wrote.
Jones ruled seven of those patent claims to be patent-ineligible.
Cantor Gaming’s claims are “directed to the abstract concept of using information gathered by observing game events to determine the best options and strategies for a player’s next move,” Jones wrote. (Page 10)
He called it an “abstract idea that does not contain an inventive concept sufficient to transform it into a patent-eligible application,” Jones wrote.
“The challenged patent claimed ‘the function of wirelessly communicating regional broadcast content to an out-of-region, not a particular way of performing that function,’ it was directed to an abstract idea,” Jones wrote.
Cantor Gaming argued its patent use was specific to cellphones, but Jones said that isn’t enough for patent protection.
The “limitation of broadcasting content only to cellphones, which ‘confine[d] the abstract idea to a particular technological environment,’ was insufficient to make the claims any less abstract,” Jones wrote.
Jones cited U.S. Supreme Court and federal district court rulings that “’repeatedly made clear that merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract.’” (Page 14)
Although Jones ruled the RE 39,818 patent is eligible for protection, he said Cantor Gaming needs to provide a better argument to proceed.
Jones said Cantor Gaming only provided screenshots of alleged infringing applications that “are ambiguous and fall short of the necessary ‘factual content that allows the court to draw the reasonable inference that the defendant is liable’” for infringing the RE 39,818 patent.
As with Big Fish Games, Jones dismissed the patent infringement claims against Zynga, but gave Cantor Gaming, et al., 30 days to file an amended complaint that addresses deficiencies in the original complaint.
That likely is good news for DraftKings, FanDuel and other defendants who have filed motions to dismiss respective claims against them by Cantor Gaming. Those motions await additional rulings, and any dismissals likely would give Cantor Gaming time to file amended complaints.
Cantor Gaming, meanwhile, awaits a ruling on a motion to consolidate all seven of its patent complaints into one case.
Cantor Gaming also is preparing to appeal the court’s patent-ineligible rulings on its patent claims.
