“a patent specification is a unilateral statement by the patentee, in words of his own choosing, addressed to thoselikely to have a practical interest in the subject matter of his invention (i.e. “skilled in the art”), by which he informs them what he claims to be the essential features of the new product or process for which the letters patent grant him a monopoly.” (Emphasis added)
“It is therefore clear that the relevant person must have skill in the art with which the invention described in the patent is concerned. In some cases the patent may include within it information derived from or utilising more than one aspect of science or technology and in such cases the notional skilled addressee, the person skilled in the art, will consist of a combination of scientists or technicians having those skills…. Each case will depend upon the description in the patent, but there is no basis in law or logic for including within the concept of “a person skilled in the art”, somebody who is not a person directly involved in producing the product described in the patent or in carrying out the process of production.” (Emphasis added)
“Even if it were true that that is what the regulatory man would have said (and the evidence only goes as far as indicating that the regulatory pathway would have been seen as difficult, perhaps impossible) I cannot see that it has anything to do with obviousness. All the argument amounts to is that it would have been impossible or difficult to get permission lawfully to sell the mixtures of the alleged invention.”
“Richardson-Vicks sought to avoid the conclusion that the patent was obvious by relying upon the difficulties of obtaining regulatory approval. That was an obstacle in the path along the road to the conclusion that the patent was obvious which, they submitted, meant that, even though it was obvious to consider substitution of ibuprofen for aspirin, a skilled addressee would have realised that it was not worth trying. They were the first to perceive that it was obvious to try the substitution and therefore, relying upon cases such as Johns-Manville Corporation's Patent ([1967] R.P.C. 479), there was invention. That submission fails for four reasons. First the alleged obstacle in the path of the skilled addressee did not form part of his common general knowledge and therefore was not an obstacle in fact. Second, claim 1 of the patent purports to monopolise the manufacture of the combination of ibuprofen and a decongestant. The alleged obstacle was not an obstacle to manufacture. It was an obstacle to marketing the combination. Thus the alleged obstacle did not prevent the manufacture of the combination being obvious. Once it was conceded that it was obvious to consider the claimed combination and the way to manufacture the combination was well-known, the conclusion that the invention was obvious was inevitable. Third the alleged obstacle only prevents commercialisation being obvious. That is not relevant to the issue of obviousness … Fourth, the cases such as Johns-Mansville have no application. They were all concerned with patents where it was alleged that there was a technical difficulty in perceiving the result. In this case there was no such technical difficulty.”
“The question is always what the person skilled in the art would have understood the patentee to be using the language of the claim to mean.” (Emphasis added)
“This invention relates to an interactive, real time, realistic “home” computer gaming system using general purpose computers. … Aspects of the invention concern auditing and security to ensure fairness for players and prevent players defeating the outcome of a game; fast, efficient communication to enable reliable, low cost, real time, realistic operation; accounting; and enabling players to play a variety of games.”
“Such systems are not interactive, are not real time because of the delays in transmitting large volumes of data; have limited auditing and/or playback capabilities because of the large amount of data that has to be stored; and are not realistic in that limited information only is displayed on the terminal screens. Auditing and data storage is problematical and generally, if there is a fault, then a bet is voided. Such systems are restricted to one form of gaming only and use dedicated or special equipment; as such are unsuitable for general gaming purposes.” ii) Computerised lottery systems. The patent describes their defects in [0004] as follows: “These systems are not interactive, real time, adaptable to other games, and of necessity use dedicated equipment.” iii) Computerised systems that enable players in a controlled environment to wager money on the outcome of games being played by others at tables in a casino. The patent describes their defects in [0005] as follows: “The system and games being played are not interactive and a croupier enters game details as it is being played. These systems mimic actual games, are not interactive, require dedicated terminals, need large volumes of data to be stored and transmitted and, because of data transmission problems, are limited to local area use. Such systems are suitable for use in, and are believed to have been used in, hotel casinos.” iv) Systems for computerised interactive wagering on poker between a number of players, using a central computer and dedicated terminals, which are confined to a local area because of the large volume of data transmitted. The patent says of them [0007]: “Large volumes of data are transmitted between machines to display games and outcomes, so that the terminals are confined to a local area. The games are interactive as among players, but not as between each player and the central computer. The central computer does not simulate a game.” v) Television or video game systems. The patent says of them [0008]: “With both these systems record storing is minimal and they are not appropriate for wagering.”
“[0009] Generally, while most of such systems as mentioned above concerned with wagering have accounting and auditing/security facilities, these are limited in nature largely because of the volume of data to be stored, the fact that data has to be stored continuously and the problem of errors. For example, to replay an event immediately prior to a fault, one has to store the position of the program being executed, which screens were showing, the state of the memory of the each of the host and each active terminal, and events or inputs leading up to that time of the fault. This is a monumental task, because one can never be sure when a fault is about to occur, and slows operation of each of the computers. [0010] Most known systems thus default to voiding a game in the event of a fault, which is unfair if the fault is beyond the control of the player. On the other hand some system is required to prevent a player from deliberately defeating the outcome of a game.”
“This invention seeks to provide a casino gaming system capable of interactive, real time, realistic gaming at genuinely remote locations which is economical, secure and reliable. Aspects of the invention seek to minimise telephone line usage and cost and terminal costs; to enable a variety of casino games to be played in such a manner that a player experiences the same “feel”, security etc. as if he were at a casino; and to ensure that faults, deliberate or accidental, in communication and at terminals do not lead to abuse by players or the entity operating the host computer.”
“The PC does not determine the outcome of any game of chance and thus cannot be considered itself to be a gaming device in the normal sense of the term.”
“A person wishing to play a game of chance from a remote PC establishes an account with a casino or host operator, deposits an opening balance, is allocated a personal password, and is given a gaming software including programs and data for generating screens appropriate to casino games. The gaming program or modifications to it may be downloaded directly from the host via a communications link if required. When the player wishes to play he activates his PC, loads the gaming program, communicates with the casino via the modem and node and “logs in” by supplying his password, which is verified by the host. The host supplies an encryption key code, which is unique for the player and may be unique for the particular communication; the key code is used to code and decipher encrypted data communicated between the PC and host by providing a one-to-one correlation between a set of 30 transmitted characters and a set of program interpretable characters. Communication is now established.”
“for security and auditing and also to replay or "roll-back" each game to the status prevailing immediately prior to any fault or disruption of communication between the terminal and host.”
“Thus, players will not be unfairly treated, e.g. if the fault was not caused by them, and players cannot defeat the outcome of a game. This simulates casino gaming conventions or rules.”
“During roll-back the host replays a game using stored player responses and stored previously generated random numbers. In order to display or reproduce this on a terminal it may be necessary to send many data packets to the player's terminal before requiring input from the player. Thus, it is necessary to be able to send multiple data packets from the host to a player's terminal.”
“Gaming is the major overt form of on-line entertainment for most computer users…. This is probably because computer users tend to be gamers and vice versa.” “Among the more interesting approaches to online multiplayer gaming are in games that use special front-end software. GEnie’s Air Warrior is one of the best examples of this kind of game.” “An interesting twist on gaming is the modem game, a multiplayer game that works by direct hookup between two personal computers.” “Although modem gaming was quite promising in the late 1980s, it seems to have been supplanted by real-time gaming on online services.”
“The popularity of computer gaming software is reflected in online activity. Executives at two major commercial services tell us that more user time is spent in online gaming than in any other activity except downloading software... On one service, online gaming accounts for 1000 times the amount of revenue produced by news services…. Obviously, online gaming is big business – multiplayer gaming more so than single-player gaming.”
“The playing of war-games or role-playing games.”
“…machines which (i) allowed players to play games of chance; (ii) had a slot capable of accepting money or money's worth and (iii) the element of chance was provided by means of the machine. The most common example of a gaming machine would be a slot machine.”
“A person wishing to play a game of chance from a remote PC establishes an account with a casino or host operator, deposits an opening balance…”
“In relation to “realistic”, in paragraph [0022] the Patent describes how a feature of the invention is that “a real life simulation of playing in a casino can be offered to players at home or remote terminals.”
““realistic” therefore means something visually resembling a casino game, including the appropriate graphic images of cards, chips, and so forth…” (Emphasis added)
“It is always tempting to cheat a computer… With single-player games cheating is fairly harmless…. Cheating at on-line games is another matter. The temptation is certainly there; even though others are involved, people who would never dream of cheating their friends in their living rooms will happily try to cheat a computer game. The stakes are different, however. The other players, who are paying$6 per hour and upwards to play, have a right to expect fairness from the game. … In addition some networks give away real prizes: free access time, cash or gifts. When items of real value are given away, service providers risk being sued if they cannot guarantee a fair game.”
“The most that can be said is that a skilled team implementing the technical teaching of the Patent would, in certain circumstances, make an enquiry of such people. The circumstances I have in mind are where the skilled team seeks to implement a little known or complicated game or where he is concerned to ensure he optimises commercial success or ensures compliance with regulations.” (Emphasis added)
“It is now possible to purchase a surprising variety of goods and services online as well as to undertake other kinds of financial transaction. Although banking promised early on to be one of the most-used features offered by online service, it took a nosedive and was used very little until recently, shortly after regional banks went national….Now however, online bill paying is increasingly popular, and credit card companies offer a number of cardholder services (you can even apply for a credit card online). Online shopping is booming. Almost all online services offer shopping of one sort or another… Specialty vendors … also offer a variety of general, noncomputer merchandise. As you might expect, computer products seem to be the mainstay of online shopping. However that appears to be changing. Most of the larger consumer online services offer the electronic equivalent of a shopping mall, populated by specialty shops (bookstore, florists, gift shops, and the like) in addition to computer software and hardware retailers. These specialty shops are catching on and doing a good business.”
“For auditing and security the host preferably has means for sequentially storing accounting data of each player, the random numbers generated by the host, responses received from each player connected to the host, and whether each game has been completed. The stored information is a record of games played and partially played by a player and may be used for automatically restoring the statuses of the host and terminal following an interruption in communication between them and/or for replaying on demand at least a portion of at least one game.” ii) [0036]: “The host stores all significant information needed for auditing, security, accounting, replaying games and restoring the status of the host and PC in the event of a fault or on demand if required. The significant information required is only the account status of the player prior to a game, the significant data contained in each data packet sent to the host and the random numbers generated by the host during the game. The significant data contained in each data packet is only that required for initiating program sequences and excludes pure communication data, e.g. player identification header, control, check and CRC bytes, re-transmissions, etc. Everything relevant to the player and the game can be regenerated from this data. Thus, minimal storage space is required for each game. In this example every player keystroke or graphics icon choice converted to the equivalent keystroke, host generated random number and whether the game is complete or not is stored. In practice, only the last few games need to be stored at any time: if required, data of older games may be flushed or transferred to a back-up storage device to minimise storage capacity requirements. This stored information is used for security and auditing and also to replay or "roll-back" each game to the status prevailing immediately prior to any fault or disruption of communication between the terminal and host.” iii) [00309] “During roll-back the host replays a game using stored player responses and stored previously generated random numbers. In order to display or reproduce this on a terminal it may be necessary to send many data packets to the player's terminal before requiring input from the player. Thus, it is necessary to be able to send multiple data packets from the host to a player's terminal.”
“We discussed the idea internally at Quantum. We talked about playing casino games over the phone for real money and how it would never work. People would not trust it.”
“At that time it was mind-boggling to even imagine that anyone would trust an online game to spin a slot machine. It is like calling someone over the phone and saying heads or tails and they would say “heads”, “you lose.””
“… if dedicated or committed processing were provided in the remote apparatuses, then the whole system would have to be modified in order to permit a change of game and this would be most inconvenient, time-consuming, and expensive. The present invention overcomes this problem and allows remote uncommitted apparatuses to be programmed from a general apparatus, thus allowing a change of game and hence of programming to be performed easily and quickly.”
“…the matter relied upon as prior art must disclose subject-matter which, if performed, would necessarily result in an infringement of the patent. That may be because the prior art discloses the same invention. In that case there will be no question that performance of the earlier invention would infringe and usually it will be apparent to someone who is aware of both the prior art and the patent that it will do so. But patent infringement does not require that one should be aware that one is infringing: "whether or not a person is working [an] … invention is an objective fact independent of what he knows or thinks about what he is doing": Merrell Dow Pharmaceuticals Inc v H N Norton & Co Ltd[1996] R.P.C. 76 , 90. It follows that, whether or not it would be apparent to anyone at the time, whenever subject-matter described in the prior disclosure is capable of being performed and is such that, if performed, it must result in the patent being infringed, the disclosure condition is satisfied. The flag has been planted, even though the author or maker of the prior art was not aware that he was doing so. … …But the infringement must be not merely a possible or even likely consequence of performing the invention disclosed by the prior disclosure. It must be necessarily entailed. If there is more than one possible consequence, one cannot say that performing the disclosed invention will infringe. The flag has not been planted on the patented invention, although a person performing the invention disclosed by the prior art may carry it there by accident or (if he is aware of the patented invention) by design. Indeed, it may be obvious to do so. But the prior disclosure must be construed as it would have been understood by the skilled person at the date of the disclosure and not in the light of the subsequent patent.”
“[It] is appropriate to consider what has been disclosed both expressly and implicitly. Thus the addition of a reference to that which the skilled person would take for granted does not matter: DSM NV's Patent [2001] R.P.C. 25 at [195]–[202]. On the other hand, it is to be emphasised that this is not an obviousness test. A patentee is not permitted to add matter by amendment which would have been obvious to the skilled person from the application.”
“Q. If an experienced computer programmer had engaged in debugging, they would have been able to determine the nature of the way in which the system operated to a much greater degree than, as it were, the mere user, someone just playing the game? A. Certainly. Q. For practical purposes, they would have been able to discover everything about the nature of the communications and how the computer operated client side? A. Generally speaking, that is true.”
“[It] would be apparent to anyone attempting to do this [i.e. using a debugger] that the packets were encrypted for a reason (namely to stop their contents from being discovered and the system thereby being reverse-engineered), that they were not supposed to be indulging in such activities, and that such activities were not authorised by AOL. This is consistent with the specifications for the individual data packets being considered confidential. Without indulging in such activities, I do not believe it would have been possible to know for sure how the RabbitJack’s client and server worked…”
“The word `obvious' in section 3 is I believe directed to whether or not an advance is technically or practically obvious and not to whether it is commercially obvious….. By `obvious modifications' are meant that which technically or practically would be obvious to the unimaginative skilled addressee in the art. Such a skilled man should be assured that his actions will not be covered by any monopoly granted to another if he does that which is part of the state of the art with modifications which are workshop alterations or otherwise technically or practically obvious alterations. He does not and should not have to look further and consider whether the step he is taking is obvious or not for commercial reasons. The prize for a good commercial decision or idea is a head start on the competition and not a monopoly for twenty years.”
“Such a prejudice may be a merely commercial one (‘this device won't sell’) or it may be a technical one (‘this won't work and it is not worth bothering with’). A 20-year monopoly is conferred for overcoming a prejudice of the second kind, but not for overcoming a commercial prejudice.”
“… the perceived limits of technical practicability are a matter of mindset, and that mindset is characteristically affected by awareness of need, of which commercial potential is both a function and an index.” (Emphasis added)
“I think having the casino operator on the team and suggesting that one could take RabbitJack's and deploy it in a casino, not only would that not be obvious but it would be decidedly not the right thing to do. In other words, I believe there would be strong indications that that was the wrong thing to do. It is hard for me [to see] how something that to a casino operator would seem to be the wrong thing to do could simultaneously be obvious.” (Emphasis added)
“I think the system that comes naturally is the one where they cannot get at it and that would be similar to the way they accessed other online services where money was being used.”
“Q. I think we have been through this before but just on that aspect, it would stare one in the face that if one were wanting to do something for real money, one would need to have adequate security, auditing, fault tolerance and recordkeeping; that is right, is it not? A. I think the functions that you are referring to are probably something that the skilled team would come up with. I think that the mechanism whereby those functions are provided is not necessarily something that the skilled team would come up with.”
“Q. Both for technical reasons, because it is an easier implementation, and because it more accurately mimics what is going on in the real world, there would be every reason to have an implementation of a software architecture that generated random numbers and game results at the server? A. Yes, I can see that is accurate. Q. That would have been appreciated by the skilled team in 1993 and 1994? A. Yes, properly construed.”
“This invention seeks to provide a casino gaming system capable of interactive, real time, realistic gaming at genuinely remote locations which is economical, secure and reliable.”
“RabbitJack’s Casino adopted the obvious distribution of processing claimed by the Patent, with the host creating the random numbers and processing the game result and account balance, and the terminal processing the simulation output. Even if an experienced user gained some knowledge about what the terminal was doing, this would not be enough to enable them to cheat because they could not interfere with the account balance and game result being processed at the host.”
“Given this, a casino operator may view RabbitJack’s as an opportunity to replace or augment the in-casino game education sessions by using “virtual” game education sessions held in RabbitJack’s casino. The CSSE would understand that the graphics of RabbitJack’s could be changed to reflect the casino operator’s branding … and that new client software containing a different set of graphics “tiles” could be sent to current RabbitJack’s users (who would hopefully be future casino customers).” (Emphasis added)
“Q. Thinking about the team that I have described, the casino operations manager, the computer scientist and the gaming mathematician, thinking about the background to casino operations that we have been through, do you say and, if so, why, that such a team would have come up with the idea of providing gaming from people's homes? A. I think that would rather depend on the skills of the computer scientist and experience or computer systems engineer and experience. This was a time when more and more things were being done, remotely online services were growing. I can see that a casino operator, for reasons that you have pointed out, would have a view about their world and what made that world work. I think it would really depend on the experience of the computer scientist, or whether he or she was involved with communications and remote access. Q. But the casino operations manager would have a very clear view about where he wanted any gaming devices or any terminals put ---- A. I think that is fair. Q. ---- within his control? A. I think that is fair. Q. Within the controlled environment of the casino? A. Within the controlled environment, yes. Q. Which would exclude people's homes? A. … I think he or she would have to be very strongly convinced that that which was in people's homes could not in any way compromise the integrity of the game. Q. The reason for that, presumably, is he would be well aware that once you put things out of his control, his ability to deal with matters such as security would obviously be compromised? A. Compromised unless, yes, special actions were taken and unless the design was .... Q. If you put things in people's homes, then you are going to be exposing yourself to determined hackers, if you want to call them that, who would be able to spend as much time as they wanted trying to find a way to cheat a system? A. I think that is true. Q. And you would not know that they were up to that? A. That is true as well. Q. As we have discussed, also, you would know that the restrictions on where gaming devices could be located, they had to be in the controlled environment of the casino, or in a controlled environment that was ---- A. Yes, I guess that would depend upon jurisdiction; yes. Q. We heard Mr. Fulop say the other day why would you want to bet money on someone tossing a coin at the end of a phone line. Why would anyone have thought that gamblers would want to bet money over a remote phone connection, in 1994? A. I think there would be many gamblers that would have great difficulty of having that level of trust with an online casino. I mean, trust in other sorts of transaction that did not involve chance, I think, was growing, as people were making more use of online services to shop or buy and sell shares; but chance I think would be harder. Q. There would be significant resistance to such an idea? A. I think that is a reasonable statement. ” (Emphasis added)
“Maintaining history files in interactive systems as in claim 3 was common place and would often be a requirement for auditing purposes.”
“Rolling back to the latest agreed common state as in claim 4 was a standard practice. With a single master (the server) this is a trivial feature, and there were already solutions to more complex issues of checkpointing and rollback-recovery for distributed systems. It is straightforward to return a player of a single player game to the position he was in before any interruption. The position is more complicated in a multiplayer game as the game may proceed while the player is away. If you allow a player to rejoin a game which is continuing where he has not missed a turn then it is obvious to update his terminal with the latest game state stored on the server.”
“Claim 5 can be seen as an obvious extension to claim 4 in which the user is provided with the context by which the agreed common state was arrived at after a communications failure.”
“(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: … (c) schemes, rules or methods for performing mental acts, playing games or doing business, and programs for computers; (3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or Europeanpatent relates to such subject-matter or activities as such.”
“How do you assess the contribution? Mr Birss submits that the test is workable – it is an exercise in judgment probably involving the problem to be solved, how the invention works, what its advantages are. What has the inventor really added to human knowledge perhaps best sums up the exercise. The formulation involves looking at substance not form – which is surely what the legislator intended.”
“… asking what the inventor has added to human knowledge necessarily means that the questioner has some notion of the state of the art. In other words, patentability cannot be put into a watertight compartment completely separate from novelty.”
“What the Board are saying in this paragraph is, I think, that you assess the patentability of a claimed invention ignoring the fact that it operates through a computer program. If, ignoring the computer program, it would be patentable, then the fact that a computer drives the invention does not deprive it of patentability.”
“Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.”
“Subsection (2) above shall not apply to the supply or offer of a staple commercial product unless the supply or the offer is made for the purpose of inducing the person supplied or, as the case may be, the person to whom the offer is made to do an act which constitutes an infringement of the patent by virtue of subsection (1) above.”
“Section 60(3) also suggests that section 60(2) is concerned with means for implementing the invention. This section removes from the ambit of section 60(2) the supply of a staple commercial product except where the supply is for the purpose of inducing an infringing act. Recourse to article 26(2) makes it clear that what is contemplated by use of the word “infringement” in section 60(3) is a direct act of infringement, namely one falling within section 60(1). If so, it is likely that the draftsman believed that section 60(2) was concerned with means intended to put the invention into an infringing state. To construe section 60(2) so as to extend it to cases where an effect occurs would be inconsistent with that belief.” (Emphasis added)