United States: Legal Update Re Pokerstars 'Zoom Poker' 573 Application

In a surprising turn of events, after multiple decisive rejections, Pokerstars' "Zoom Poker" patent application (11/316,573, published as US 2007/0155460A1) has been allowed as amended by the United States Patent and Trademark Office ("USPTO"). A patent entitled "Computer Gaming Device and Method for Computer Gaming" will issue on May 20, 2014, as U.S. Patent No. 8,727,850.

Pokerstars obtained the rights to the '573 application as part of its July 27, 2012 settlement agreement with the United States Department of Justice, resolving civil money laundering and forfeiture claims arising from Pokerstars' operation of online gambling websites in the United States. Part of Pokerstars' $731 Million forfeiture payment to the United States was earmarked to pay balances owed by Full Tilt Poker to non-U.S. players, and Full Tilt Poker agreed, in its own settlement with the United States, to assign its intellectual property to Pokerstars.

At the time of this settlement, the original claims of the '573 application had been repeatedly rejected by the original patent examiner as being obvious over previously filed applications covering methods of assigning game players to new game tables.

The first rejection dates back to December 7, 2008. At that time the Examiner found all of Pokerstars' independent claims as being anticipated by an earlier patent application by Oliveras which taught a game machine system configured to automatically move a player at a first table to a second table. The Examiner also saw nothing novel in using a processor to take seat location at the first table into account when reassigning a player to the next table.

On March 16, 2009, amended claims emphasizing the use of a queue to "automatically" reassign players to a new virtual table were submitted by Pokerstars' predecessor, Full Tilt Poker. These claims were rejected on June 6, 2009. The Examiner observed that the Oliveras system was capable of automatically moving a first player to a second table and that "it would have been obvious to one of ordinary skill in the art to offer a queue of new players where new players can join to wait for an open seat."

On September 22, 2009, a request for continued examination was filed by Full Tilt Poker, Pokerstars' predecessor, together with a response claiming that Oliveras did not disclose a processor configured to move a player from the table to a queue. Three and a half years passed with no further action on the application by the USPTO. In the meantime, Pokerstars filed numerous submissions of additional patent and nonpatent literature references, including refusal of its counterpart application for Zoom Poker by the European Patent Office (March 26, 2013, Pokerstars' European Patent Application No. 06836201.1, which claimed priority to the '573 application, was refused for lacking an inventive step.)

On February 19, 2013, Pokerstars initiated an interview, and discussed the June 2009 rejections with a new Examiner from the USPTO. Pokerstars agreed to try to modify their claims again to more precisely reflect their claimed inventive concepts.

On March 28, 2013, Pokerstars withdrew all of its 51 previous claims and submitted 53 new ones. Pokerstars' original claims were for a game machine system comprised of a processor configured to provide a first table, to provide cards for the first hand at the first table, an interface coupled to the processor to receive a request to fold, and a processor configured to automatically move the first player to a second table. The new claims were narrower in that the request to fold was specified as "made out of turn" and that the folding player would be moved automatically to a second virtual table "while the first-hand is still active."

On January 31, 2014, the new Examiner rejected all of Pokerstars' claims as unpatentable over previously filed patents and applications. Citing applicable patent law, the Examiner observed that "It would have been obvious to one having ordinary skill in the art at the time the invention was made to move the first player automatically to a second virtual table of a second group of players to play a second hand while that first-hand is still active, since it has been held that broadly providing a mechanical automatic means to replace manual activity which has accomplish the same result involves only routine skill in the art."

On March 4, 2014 and March 13, 2014, the Examiner conducted a second interview with Pokerstars' attorneys, leading to discussions of an amendment proposed by the Examiner to which Pokerstars agreed.

On March 31, 2014, the Examiner proposed changes including changing folding "out of turn" to folding "when gameplay is at a position of another one of the first plurality of players." The Examiner also added language restricting the claims to "poker card games." In addition, the Examiner added, to each independent claim, the following language (underscored):

...in response to the request to fold, move the first player automatically to a second virtual table of the second plurality of players to play a secondhand while the first hand is still active for at least one of the other players at the first table, wherein once the first player is moved, the server prevents the first player from playing the first-hand.

According to Bill Gantz, a gaming and intellectual property lawyer at Dentons, "the Examiner found and cited both prior art and common sense in the January 31, 2014 rejection for every step of the claimed invention with the exception of configuring the server to prevent a player from playing the folded hand. It is truly surprising here that the Pokerstars application survived multiple wholesale rejections, and that this patent appears to have issued because the prior art available to the Examiner simply did not teach that a game server should be configured to prevent a player who folds from playing the hand they just folded. Everyone knows a fold means you are out of the hand. It is also surprising that the patent issued over prior art cited by the Examiner teaching taking a fold 'out of turn.' The amendments which allowed this patent to issue should seem obvious to the entire poker industry, and there should be ample grounds for vigorously challenging this patent."

In view of public statements made previously by Pokerstars general counsel Paul Telford, Pokerstars might assert its impending patent against operators of online fast fold poker games (wagering and free play) in the United States. The market for real money online fast fold poker in the United States seems only nascent, and the issuance of this patent will have no impact on considerable fast fold poker business conducted in Europe or otherwise outside of the United States. In the United States, operators of free play fast fold poker websites, such as leading operator Zynga, might be affected.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions