DCT
1:19-cv-00871
POM Of Virginia LLC v. Coleman Music Entertainment LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Queen of Virginia Skill and Entertainment, LLC (Wyoming); POM of Virginia, LLC (Wyoming)
- Defendant: Coleman Music and Entertainment, LLC (Florida)
- Plaintiff’s Counsel: Eckert Seamans Cherin & Mellott, LLC
- Case Identification: 1:19-cv-00871, E.D. Va., 06/28/2019
- Venue Allegations: Venue is alleged to be proper as Defendant maintains a regular and established place of business in the district and has committed the alleged acts of patent infringement there.
- Core Dispute: Plaintiff alleges that Defendant’s "Preview + Skill" electronic gaming terminals infringe a patent related to electronic gaming systems that display a preview of the game outcome to a player before play is initiated.
- Technical Context: The technology operates in the regulated field of skill-based gaming, where a key legal distinction is often drawn between games of pure chance (e.g., traditional slot machines) and games where player skill is a determinative factor.
- Key Procedural History: Plaintiff Queen of Virginia Skill and Entertainment, LLC asserts its rights as an exclusive licensee in the Commonwealth of Virginia of the patent-in-suit, which is owned by Savvy Dog Systems, LLC. The complaint also includes separate counts for breach of contract.
Case Timeline
| Date | Event |
|---|---|
| 2006-03-31 | '223 Patent Priority Date |
| 2010-06-15 | '223 Patent Issue Date |
| 2017-12-12 | "First Contract" between POM and Coleman |
| 2019-01-10 | "Second Contract" between QVS and Coleman |
| 2019-06-28 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Patent No. 7,736,223, "Electronic Gaming Method and System Having Preview Screen," issued June 15, 2010.
The Invention Explained
- Problem Addressed: The patent's background describes the regulatory environment for electronic games, highlighting the legal distinction between prohibited games of chance and permissible "skill-based amusement machines" where the player's skill, not predetermined odds, must control the outcome. (’223 Patent, col. 1:12-29).
- The Patented Solution: The invention is an electronic gaming system that presents the player with a "preview" of a game field before the player commits to playing. (’223 Patent, Abstract). This preview allows the player to decide whether to play the displayed game. The patent describes that in some implementations, the "preview screen could actually be the results screen, displaying the game outcome," meaning the player knows the result before choosing to play, ostensibly to see the preview for the next game. (’223 Patent, col. 11:18-21). This process is designed to inject a predominant element of player skill and decision-making into the game.
- Technical Importance: By disclosing the game's outcome or a near-complete game state to the player pre-commitment, this technical approach seeks to shift the legal character of the device from a game of chance to a game of skill. (Compl. ¶19).
Key Claims at a Glance
- The complaint asserts independent claim 44 of the ’223 Patent. (Compl. ¶28).
- The essential elements of independent claim 44 are:
- An electronic game terminal with a touch screen display;
- A game processor configured to:
- Construct a game field with symbols;
- Determine at least one winning combination for the game;
- Test the game field before display to ensure a more valuable winning combination is not inadvertently generated when the field is completed;
- Automatically display the actual game to the player before play is initiated;
- Determine if the player decides to play; and
- Display the outcome after play.
III. The Accused Instrumentality
Product Identification
- The accused instrumentalities are electronic video gaming terminals equipped with circuit boards from Banilla Games, Inc., which run a suite of "Preview + Skill" games. (Compl. ¶27). Specific game titles named include Lightning Skill, Super Skill (1-3), Superior Skill: Lightning Edition, and Choice Skill (1-4). (Compl. ¶27).
Functionality and Market Context
- The accused products are gaming terminals sold by Defendant to retailers, such as convenience stores, in Virginia. (Compl. ¶4, ¶27). According to the complaint, the games include a "prize viewer" feature that "illustrates the outcome of the next game before it is played." (Compl. ¶53). The complaint shows a user interacting with the touch screen of an accused "Superior Skill: Lightning Edition" terminal. (Compl. ¶40, p. 11). They are also alleged to incorporate interactive features such as "nudging" a reel or "hot swapping" an icon, which require player input to complete a winning line. (Compl. ¶57, ¶60).
IV. Analysis of Infringement Allegations
U.S. Patent No. 7,736,223 Infringement Allegations
| Claim Element (from Independent Claim 44) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| an electronic game terminal including a touch screen display | The accused products are physical gaming terminals that have interactive touch screens. The complaint includes a photograph showing a user manipulating the terminal's touch screen. | ¶40 | col. 13:54-56 |
| a game processor for generating an interactive electronic game on the game terminal | The terminals allegedly use a game processor to receive user commands from the touch screen, process them, and generate graphical output for the user to interact with. | ¶45 | col. 15:51-54 |
| constructing a field having a plurality of elements...wherein each element includes a game symbol... | The accused games are alleged to construct a 3x3 or 3x5 array of game symbols for the interactive display. | ¶47, ¶51 | col. 15:55-59 |
| determining at least one winning combination for each play of the game | This is allegedly met by the "prize viewer" feature, which illustrates the outcome of the game to the player before it is played. | ¶53 | col. 16:11-13 |
| testing the game field prior to displaying the game...to ensure that a winning combination more valuable than the determined winning combination is not generated inadvertently in completing the field | The complaint alleges that for "nudge" or "hot swap" games, the processor tests the field to ensure that the player's interaction does not create a winning outcome more valuable than the predetermined prize. | ¶56, ¶61 | col. 16:14-19 |
| automatically displaying an actual game to be played on the touch screen game display to a player prior to initiating activation of game play | The system allegedly displays the game field with an overlaid prize viewer and "press play" language, showing the player the game to be played before they commit. The complaint provides a screenshot of this "prize viewer" screen. | ¶63, p. 23 | col. 16:20-23 |
| determining if the player has decided to play the displayed game | The game processor allegedly receives and processes the user's input from touching the "Press Play" option on the screen to determine the player's decision. | ¶67 | col. 16:24-25 |
| displaying an outcome resulting from play of the displayed game | After the user initiates play, the processor allegedly performs an animation and displays the game's outcome, such as by adding a prize value to the user's credits. The complaint includes a screenshot highlighting the displayed win and credit total. | ¶69-70 | col. 17:1-2 |
Identified Points of Contention
- Scope Questions: A central dispute may concern the meaning of "testing the game field...in completing the field." The complaint's theory appears to be that this limitation is met by the game logic preventing a player's "nudge" or "hot-swap" action from creating a more valuable outcome than what was predetermined. (Compl. ¶57, ¶61). A counterargument could be that "completing the field" refers to the initial, automated construction of the game grid by the processor, not to subsequent player interactions.
- Technical Questions: The complaint's allegations rely on external observations of the games' behavior (e.g., the "prize viewer"). A key question for discovery will be whether the underlying software architecture of the accused games actually performs the specific steps of "determining" and "testing" in the manner required by the claim language, or if the observed functionality is achieved through a different, non-infringing method. The image in the complaint depicting the "nudging" interaction raises the question of how the game logic constrains this player action to prevent an inadvertent higher payout. (Compl. ¶58, p. 22).
V. Key Claim Terms for Construction
The Term: "testing the game field prior to displaying the game to the player to ensure that a winning combination more valuable than the determined winning combination is not generated inadvertently in completing the field"
Context and Importance: This complex functional limitation is central to the patent's purported solution to the skill-versus-chance problem. Its interpretation will be critical for infringement. Practitioners may focus on this term because the plaintiff's infringement theory depends on it covering player interactions (like a nudge), whereas a defendant may argue it is limited to the machine's internal generation of the initial game state.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification describes a software algorithm that "assesses the arrangement of the prize(s) to be offered to assure that no other, more valuable prizes will inadvertently be presented." (’223 Patent, col. 6:28-31). This language could support an interpretation where the "testing" governs the entire game sequence, including the final result after player input.
- Evidence for a Narrower Interpretation: The specification also describes a multi-step process for constructing a field where the system will "test the complete field for compliance" and "repeat the construction process if compliance fails." (’223 Patent, col. 4:50-57). This may support an argument that the "testing" and "completing" actions are part of the machine's initial setup of the puzzle before it is presented to the player.
The Term: "automatically displaying an actual game to be played... prior to initiating activation of game play"
Context and Importance: This term defines the core "preview" functionality. The dispute may turn on what constitutes "an actual game to be played" versus a mere preview, and when "activation" is considered to occur.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification states that "the preview screen could actually be the results screen, displaying the game outcome." (’223 Patent, col. 11:18-21). This suggests that showing the final state of the game qualifies as displaying "an actual game."
- Evidence for a Narrower Interpretation: The Abstract distinguishes between presenting a field "as a preview for deciding whether or not to play" and the subsequent play itself. (’223 Patent, Abstract). This could support an argument that the preview is legally and technically distinct from the "actual game," which only comes into being after the player "activates" it.
VI. Other Allegations
- Indirect Infringement: The complaint does not contain specific allegations to support claims of induced or contributory infringement.
- Willful Infringement: The complaint does not explicitly allege willful infringement or plead facts related to pre-suit knowledge of the patent. The prayer for relief includes a request that the case be deemed "exceptional" under 35 U.S.C. § 285, but does not provide a factual basis for willfulness. (Compl. Prayer for Relief ¶G).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of claim scope: can the phrase "testing the game field... in completing the field" be construed to cover the outcome of player-initiated actions like "nudging," or is its meaning confined to the machine's initial, automated generation of the symbol array before it is presented to the player?
- A key evidentiary question will be one of functional operation: does the internal software logic of the accused "Preview + Skill" games actually perform the specific pre-determination and "testing" functions recited in Claim 44, or is the observed "prize viewer" functionality achieved through a different technical method that falls outside the claim's scope?