Konami Gaming Inc v Aristocrat Technologies Australia Pty Ltd
[2015] FCA 92
•19 February 2015
FEDERAL COURT OF AUSTRALIA
Konami Gaming Inc v Aristocrat Technologies Australia Pty Ltd
[2015] FCA 92
Citation: Konami Gaming Inc v Aristocrat Technologies Australia Pty Ltd [2015] FCA 92 Parties: KONAMI GAMING INC and KONAMI AUSTRALIA PTY LTD v ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD File number(s): NSD 506 of 2013 Judge(s): BENNETT J Date of judgment: 19 February 2015 Catchwords: PATENTS – construction of some integers of the claims as separate determination
PATENTS – meaning of “round of a game” – whether it refers to both a normal game and bonus game – meaning of “independent” as ordinary English meaning
Legislation: Patents Act 1990 (Cth) Date of hearing: 2 - 4 December 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 101 Counsel for the Applicants: Mr RJ Webb SC with Mr HTP Bevan Solicitor for the Applicants: Thomsons Lawyers Counsel for the Respondent: Mr SCG Burley SC with Mr ADB Fox Solicitor for the Respondent: Gilbert + Tobin
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 506 of 2013
BETWEEN: KONAMI GAMING INC
First ApplicantKONAMI AUSTRALIA PTY LTD
Second ApplicantAND: ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD
Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
19 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT 837 PATENT BE CONSTRUED AS FOLLOWS:
1.“Round of a game”, in claim 1, be construed as the commencement of a normal game in which an award or bonus game may be obtained.
2.Integers (b), (c) and (d) of claim 1 be limited to a normal game.
3.Claims 1 and 4, read together, be construed to encompass a bonus game.
4.Claim 7 be limited to a bonus game.
5.The word “independent”, in claim 9, be given its ordinary English meaning in that the pair or columns or the location of the trigger condition are not dependent upon or contingent upon each other.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 506 of 2013
BETWEEN: KONAMI GAMING INC
First ApplicantKONAMI AUSTRALIA PTY LTD
Second ApplicantAND: ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD
Respondent
JUDGE:
BENNETT J
DATE:
19 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The first applicant, Konami Gaming, Inc (Konami) is the registered proprietor under the Patents Act 1990 (Cth) of Australian Patent No 2008201837 (the 837 Patent) which is entitled “Gaming machine arranging two symbol columns in the same order”. The field of the invention as stated relates to a gaming machine that is installed in a casino or the like and, in particular, conducts a slot game. It is common between the parties that a “slot game” indicates a game with a spinning reel or reels.
The parties jointly asked the Court to consider the construction of certain terms in the claims in advance of the hearing on infringement and revocation of the 837 Patent.
Each party led expert evidence in support of its asserted construction of the 837 Patent. Konami relied on the evidence of Mario Castellari, Managing Director of Game Weavers Pty Ltd, a company that develops game content for slot machine manufacturers. Mr Castellari has over 20 years’ experience in the gaming and poker machine industry. The respondent, Aristocrat Technologies Australia Pty Ltd (Aristocrat) relied on the evidence of Mr Benjamin Ellis, a game designer since 1998 and Managing Director of Games Lab Pty Ltd and Slots Central Pty Ltd. The experts’ expertise was not challenged.
THE 837 SPECIFICATION
The background information in the 837 Patent explains that gaming machines such as slot machines, poker machines, fruit machines and the like display an arrangement of symbols on the front and randomly change types of symbols in the arrangement at each round of a game. A player places a bet at the start of each round and, if a winning combination appears in the arrangement, the player will win an amount of a payout that depends on the amount of the bet and the type of winning combination.
It is worth noting at this point that the expression ‘round of a game’ is introduced in the 837 Patent in the context that a player places a bet at the start of each round.
The gaming machine is said to be generally equipped with mechanical reels that are allowed to spin independently. Symbols are permanently displayed on each reel in a predetermined order. Mechanical reels repeat spins and stops and thereby change visible symbols at random. Alternatively, where an electric display is used, symbols are displayed in a graphic form on the screen. The symbols are aligned in two or more columns, that is, video reels, and, like mechanical reels repeating spins and stops, the video reels repeatedly change in appearance and, thereby, symbols repeatedly move and stop in a vertical direction. Such actions of symbols are often referred to as ‘spins and stops of video reels’.
The background information reveals the unsurprising fact that most players prefer a gaming machine that can provide a larger amount of payout. The upper limit of payout ‘per round’ generally depends on a total number of types of symbol arrangements visible on reels.
Mechanical reels have a limited number of symbol types mainly because of their sizes. In order to increase the upper limit of payout per round, a gaming machine with mechanical reels randomly provides a player with a right to play a bonus round. I note at this stage that the expression is ‘a bonus round’. In a bonus round a player can win a larger amount of payout or an amount of payout more frequently than at a normal round. In addition, a player can play a bonus round for free. That is, a bonus round may, but does not necessarily, require the placing of a bet.
Video reels (the columns used in the electric display) have no limited number of symbol types in principle. A gaming machine with video reels also provides a player with a right to play a bonus round in order to enhance the variety of game contents and visual effects. The specification explains that recent progress on game controllers, computer graphics and display devices enables gaming machines to produce more varieties of bonus rounds with more complex rules and visual effects. This facilitates differentiation of one type of gaming machine from others.
The problem identified in the specification is that excessively complex rules and visual effects may prevent gaming machines from raising players’ expectations for winning and may also place a heavy burden on game designers and developers. Accordingly, there is a stated need for an improved gaming machine that can produce a bonus round with more simple rules and visual effects, thereby causing a player to recognise the bonus round more clearly and reduce the burden on game designers and developers.
Summary of the invention as set out in the 837 Patent specification
The gaming machine of the invention comprises a display unit, a console unit, a game controller unit and a display controller unit.
The display unit is configured to display symbols in a plurality of columns, preferably arranged in the same order in two or more of the columns. The display unit is configured to spin and stop the columns of symbols.
The console unit is configured to accept instructions from a player. The instructions preferably indicate starting a round of game or placing a bet. The console unit is preferably configured to accept money from a player.
The game controller unit is configured to execute a game program. First, the game controller unit starts a round of game in response to an instruction accepted by the console unit. The game controller unit preferably uses a portion of the money accepted by the console unit as a bet. It may interpret the instruction to place a bet as a cue for starting a round of game. The game controller unit determines an arrangement of symbols at random on a condition that symbols are arranged in the same order and at the same positions in the two or more columns (the Condition). The game controller unit retrieves a winning combination from the arrangement of symbols. The game controller unit provides the player with an award, depending on the winning combination, and may determine the type of the award depending on the bet.
The display controller unit is configured to cause the display unit to spin the two or more columns of symbols from the same position in synchronisation with each other and stop the two or more columns at the same position to display the arrangement of symbols determined by the game controller unit.
At this point, it is worth noting that each of the units is said to be “configured”. Under the heading “General interpretation of terms”, the specification states that ‘[i]n understanding of the scope for the present invention’ certain terms are used. Relevantly:
·Configured: to describe a component, section or portion of a device includes hardware and/or software that is constructed and/or programmed to carry out the desired function.
·Comprising and its derivatives: are intended to be open-ended terms that specify the presence of the stated features, elements, components, groups, integers and/or steps, but do not exclude the presence of other unstated features, elements, components, groups, integers and/or steps.
Further, the description in the specification of the game controller unit:
·lists the functions sequentially or chronologically;
·refers to the start of a round of game;
·says that the start of a round of game is in response to an instruction accepted by the console unit, in which case the game controller unit preferably uses a portion of the money accepted by the console unit as a bet; and
·contains no specific reference in this part of the description to a bonus game or a normal game.
In general, the specification states, a winning combination includes the same type of symbols at the same positions of two or more columns. Since the game controller unit determines an arrangement of symbols on the Condition, chances are ‘fairly good’ that a winning combination will appear in the arrangement determined by the game controller unit. Furthermore, the display unit spins the two or more columns of symbols from the same position in synchronisation with each other, which effectively raises the player’s expectations for winning an award. The Condition is easy to impose on the game controller unit. Thus the design balance is achieved.
Preferably, the display unit comprises a mechanical reel. Alternatively, the display unit may comprise an electric display device. The game controller unit preferably determines an arrangement of symbols at random without the Condition in normal games and on the Condition on bonus games. In that case, the display controller unit preferably causes the display unit to spin all columns of symbols independently in normal games and spin the two or more columns of symbols from the same position in synchronisation with each other in bonus games. The display unit preferably pairs a left end column of symbols with a right end column. In that case, the game controller unit preferably determines an arrangement of symbols at random on the Condition. The display controller unit preferably causes the display unit to spin each pair of columns from the same position in synchronisation with each other and stop the pairs at respective positions from the outermost to the innermost but it may be in another order. Alternatively, the display unit may pair different two columns.
The specification then provides under a separate heading a detailed description of the preferred embodiment. That is said to be provided ‘for illustration only and not for the purpose of limiting the invention as defined by the appended claims and their equivalents’. As part of that detailed description, it is stated that ‘the gaming machine preferably conducts a game having two modes, i.e., a normal mode and a bonus mode. Details of rounds in the two modes will be described below’. It is stated that the appearances of the video reels are preferably changed depending on whether a round of game is in a normal mode or a bonus mode.
In the bonus mode, two or more video reels are grouped. Preferably a left end video reel is paired with a right end video reel, in turn, starting from the outmost video reels. Different two video reels may be paired. In each pair of video reels, the symbols are arranged in the same order and the same positions and each pair of video reels spins from the same position in synchronisation with each other and stops at the same positions. That is, the paired reels are left-right symmetric throughout a bonus round, regardless of where the video reels spin or stop. The gaming machine provides a player with an award depending on a winning combination of symbols appearing on stopped video reels. Types of awards vary with amount of bets and types and numbers of symbols included in winning combinations. Types of winning combinations can be determined by various rules. There is a much better chance that three or more symbols of the same type will appear on the stopped video reels at a bonus round than at a normal round. That is, the player has a much better chance of winning a larger amount of payouts at a bonus round than at a normal round.
The specification then describes the random-number generator unit which generates and outputs random numbers, preferably at the start of each round of game, to the CPU, which uses the random numbers randomly to select an arrangement of symbols to be displayed on the video reels when they will stop. The CPU selects stop positions of the video reels at random. The CPU preferably uses the random numbers to determine whether or not to provide an award to a player at random.
The specification explains that trigger symbols can preferably appear on the video reels. The figures describe a circumstance where, if three or more trigger symbols are scattered on the video reels in stop positions linked to the random numbers in the stop position table, the combination of the random numbers is assigned to a right to play a bonus round in the winning combination table. When the CPU retrieves the right link to the combination of the random numbers from the winning combination table, the CPU then changes the normal mode to the bonus mode. At a bonus round, the CPU uses only three random numbers to determine stop positions of the video reels and decide whether or not to provide an award. The types of random numbers are reduced on the Condition. Preferably, trigger symbols can also appear on the video reels in a bonus round. In the description of the particular example, if any symbol were replaced with a “star” trigger symbol, the right to play a bonus round would be assigned to the same random numbers as those assigned to the corresponding stop positions of the video reels. When the CPU retrieves the right linked to the combination of the random numbers from the winning combination table, the CPU then continues a next round in the bonus mode.
The display controller unit further controls video reels in different manners depending on whether a round of game is in a normal or bonus mode. In a normal round, the display controller unit preferably causes symbols to appear in different orders on different video reels when spinning. After a predetermined time has elapsed from the start of the spin of the video reels, the display controller unit preferably stops the video reels one by one in their respective stop positions that the CPU randomly selects at the start of each normal round. In a bonus round, the display controller unit preferably pairs the first and fifth video reels and the second and fourth video reels. Then, the display controller unit preferably arranges symbols in the same order in each pair of video reels and preferably spins each pair of video reels from the same position in synchronisation with each other. This may occur either by starting spinning from the same stop position or by adjusting the rotation speeds of spinning video reels, thereby synchronising each pair of reels when both the video reels locate at the same position.
The third embodiment is further described by reference to the operations of the gaming machine in the order of processes in a round of game.
A player inserts coins or bills. The game controller unit reads the count and updates credit data to increase the player’s credits by a number corresponding to the count. Then, the game controller unit starts a normal round of game.
When the console unit accepts a bet, the game controller unit enables the console unit to accept a cue to start spinning of video reels from a spin button. When the console unit detects a push of the spin button, the game controller unit updates the credit data to decrease the amount of credits by the amount of the bet. The game controller unit causes the random number generator unit to generate five random numbers and select stop positions of the video reels at random. If the game controller unit retrieves an award linked to the combination of the five random numbers from the winning combination table and it then decides to provide the award to the player.
At predetermined time intervals the display controller unit causes the middle display unit to stop the video reels one by one into their respective stop positions selected by the game controller unit. If the game controller unit has decided to provide no award to the player, the game controller unit finishes the normal round and then waits until the console unit accepts a new bet or an instruction from the player. If instructed by the player, the game controller unit may convert his or her credits into cash or the like by using the payout controller unit.
If the game controller unit has decided to provide the player with a payout, the game controller unit controls visual and sound effects representing the winning of the payout. The game controller unit updates the credit data stored to increase the player’s credits by a payout to be provided as an award. If instructed by the player, the game controller unit may provide him or her with the payout in cash or the like by using the payout controller unit.
If the game controller unit has decided to provide the player with a right to play a bonus round, three or more trigger symbols are scattered on the stopped video reels. The game controller unit further starts a bonus round, which it preferably conducts as a bonus round for free; that is, allows a fixed bet to be placed without reducing the player’s credits, noting that the game controller unit may use a portion of the player’s credit as a bet. At the start of a bonus round the game controller unit enables the console unit to accept a cue to start spinning of video reels from a spin button and the game controller unit causes the random number generator to generate three random numbers. It then retrieves stop positions of the left three video reels linked to the three random numbers from respective stop position tables. The game controller unit also retrieves the three random numbers from a winning combination table for use in the bonus mode. If it retrieves an award linked to the combination of the three random numbers, the game controller unit then decides to provide the award to the player. The game controller unit instructs the display controller unit to cause the middle display unit to start spinning the video reels, then the video reels start spinning. The display controller unit then pairs the video reels and arranges symbols in the same order in each pair of video reels and starts spinning each pair of video reels from the same stop position in synchronisation with each other. More specifically, the display controller unit always causes the same symbols to appear on the pair of the first and fifth video reels. It always causes the same symbols to appear on the pair of the second video reel and the fourth video reel.
Alternatively, the display controller unit may adjust the rotation speeds of the video reels after they start spinning and thereby synchronise each pair of video reels from a certain moment when both video reels locate at the same position. As a result, the display controller unit maintains a symbol arrangement on the video reels, left to right symmetric through a spin of the video reels. At predetermined time intervals, the display controller unit causes the middle display unit to stop the video reels pair by pair into their respective stop positions selected by the game controller unit, preferably stopping the pairs in the order from outermost to innermost.
The game controller unit determines the stop position of the first reel and instructs the display controller unit to match the stop position of the fifth reel with the stop position of the first video reel. Similar steps occur with the next inner pairs; that is the second and fourth video reel of a five reel machine. Finally, the display controller unit stops the third video reel in a stop position determined by the game controller unit.
If the game controller unit has decided to provide no award to the player in advance, at most two symbols of the same type appear on the stopped video reels. The game controller unit finishes the bonus round and then starts the next bonus round. If the game controller has decided to provide the player with a payout, the game controller unit updates the credit data to increase the player’s credits by a payout to be provided as an award. In such a manner, the specification says, there is a much better chance that a player wins a larger amount of payouts in a bonus round than in a normal round. If the game controller unit has decided to provide the player with a right to play a bonus round, three or more trigger symbols are scattered on the stopped video reels. The game controller unit further starts the next bonus round. If a predetermined times of bonus rounds has been finished, the game controller unit changes the bonus mode to the normal mode and waits until the console unit accepts a new bet or instruction from the player, unless the player instructs the game controller unit to convert his or her credits into cash or the like.
Thus, the specification says, the gaming machine can provide a player with a better chance of winning an award in a simple manner and cause the player to recognise the chance through simple and clear visual effects without any heavy burden on game designers and developers.
The specification notes that the symbols may be arranged in a square lattice on a game screen and that the video reels may be replaced with mechanical reels.
It is stated in the specification that only selected embodiments have been chosen to illustrate the invention and that the descriptions of the embodiments according to the present invention are provided for illustration only and not for the purpose of limiting the invention as defined by the claims and their equivalents.
The claims
The present debate between the parties focuses largely on claims 1 and 9. However, other claims were referred to in support of submissions advanced.
The claims relevant to this aspect of the construction dispute are:
1.(a) A gaming machine comprising:
(b) A display unit configured to
(i) display symbols in a plurality of columns,
(ii) spin the symbols,
(c)arrange the symbols in the same order in two or more columns, and
(d)stop the columns of symbols, the two or more columns being arranged in a predetermined position with respect to one another;
(e)a console unit configured to accept money instructions from a player;
(f)a game controller unit configured to: start a round of a game in response to an instruction accepted by the console unit,
(g)determine an arrangement of symbols at random on a condition that the symbols are arranged in the same order and at the same positions in the two or more columns;
(h)retrieve a winning combination from the arrangement of symbols, and provide the player with an award depending on the winning combination retrieved from the arrangement of symbols; and
(i)a display controller unit configured to cause the display unit to spin the symbols of the two or more columns from the same position in synchronization, and
(j)stop the symbols in the two or more columns at the same position to display the arrangement of the symbols determined by the game controller unit.
4. A gaming machine according to claim 1, wherein
(l)the game controller unit is configured to determine an arrangement of symbols at random on the condition that the symbols are arranged in the same order and at the same positions in the two or more columns in bonus games, and
(m)the display controller unit is configured to cause the display unit to spin all columns of symbols independently in normal games, and
(n)spin the symbols of the two or more columns from the same position in synchronization with each other in the bonus games.
7.(o) A method of displaying symbols on a gaming machine comprising:
displaying symbols in a plurality of columns on a display, and
(p)arranging the symbols in the same order in two or more columns, the two or more columns being arranged in a predetermined position with respect to one another;
(q)determining an arrangement of symbols at random on a condition that symbols are arranged in the same order and at the same positions in the two or more columns by a controller;
(r) retrieving a winning combination from the arrangement of symbols;
(s) spinning symbols of the plurality of columns in synchronization, and
(t)stopping the symbols of the two or more columns at the same position in a predetermined order to display the determined arrangement of symbols; and
(u)providing the player with an award depending on a winning combination retrieved from the determined arrangement of symbols.
9.(v) A gaming machine comprising:
a display unit configured to display symbols in a plurality of columns;
(w)a console unit configured to accept money instructions from a player;
(x)a game controller unit coupled to the display unit and the console unit for initiating a normal game in response to an instruction accepted by the console unit, the game controller unit in initiating the normal game being configured to:
(i) randomly determine an arrangement of the symbols;
(ii)spin the symbols in columns on the display unit and stop the symbols in columns on the randomly determined arrangement; and
(iii)defect an occurrence of a winning combination of symbols and responsively provide the player with an award depending on the winning combination retrieved from the arrangement of symbols;
(y)the game controller unit also detecting a trigger condition within the normal game and responsively initiating a bonus game, the game controller unit in initiating the bonus game being configured to:
(iv) randomly determine a second arrangement of the symbols;
(v)spin the symbols on the display unit and stop the symbols in the randomly determined second arrangement; and
(vi)detect an occurrence of a second winning combination of symbols and responsively provide the player with a bonus award depending on the second winning combination retrieved from the second arrangement of symbols,
(z)wherein during the bonus game, the symbols are a pair of columns being the same and in the same order,
(aa)the game controller unit being adapted to spin the symbols on the pair of columns from the same position in the synchronized and
(bb)stop the symbols on the pair of columns at the same position in the bonus game, the pair columns being arranged in a predetermined position with respect to one another and independent of a location associated with the trigger condition.
(emphasis added)
ISSUES PRESENTLY IN DISPUTE
The issues as to construction between the parties relate to:
·Whether claim 1 is limited to the play of a normal game (as opposed to a bonus game).
·The meaning within integers (b), (c) and (d) of claim 1 and specifically ‘spin the symbols’, ‘arrange the symbols in the same order in two or more columns’ and ‘stop the columns of symbols’.
·The construction of claim 4 in light of its dependency on claim 1.
·Whether any part of claim 7 is limited to the play of a normal game (as opposed to a bonus game).
·The meaning in claim 9 of “independent” in the context of ‘being arranged in a predetermined position with respect to one another and independent of the location associated with a trigger condition’.
The construction of Claim 1
The first observations to be made are that invention the subject of a claim may be more limited than the invention described in the specification and that the invention of a claim is not necessarily coincident with a preferred embodiment.
As to claim 1, this is to a gaming machine comprising, in the sense of including, a number of elements with specified configurations. It will be recalled that configured is used to describe a component, section or portion of a device including hardware and/or software that is constructed and/or programmed to carry out the desired function. That is, the claim states the function necessary to satisfy the integer.
The display unit, relevantly, is configured to arrange the symbols in the same order in two or more columns and to stop the column of symbols with the two or more columns being arranged in a predetermined position with respect to one another. The requirements for the display unit are considered sequentially. They refer to the initial display of symbols, the spinning of the symbols, the arranging of them and the stopping of the symbols. It is apparent that integer (c), the arrangement of the symbols in the same order in the two or more columns, is a reference to that arrangement during spinning and occurs prior to integer (d) which is when the columns are stopped after spinning. Integer (d) is configured so that the two or more columns are arranged in a predetermined position with respect to one another, but there is no requirement that the columns of symbols be stopped in the same position.
The console unit of claim 1 (integer (e)) is configured to accept money instructions from a player. Is it the case that “configured”, in the context of the integer of the claim referring to the console unit, means that the unit carries only the stated function or does it mean that it necessarily carries out the stated function but that it may carry out a further function?
The requirements for the game controller unit are, as a matter of logic, listed sequentially, that is, chronologically. The first is that it must start a round of a game in response to instruction accepted by the console unit. A question that arises is whether the console unit is only configured to accept money instructions from a player. If so, an instruction accepted by the console unit must refer to a money instruction so that the game controller unit starts a round of a game only in response to a money instruction from a player. If that is the case, the round of a game in integer (f) must be a normal game or a bonus game which requires a money instruction from a player to be started. It is not in dispute that the commencement of a normal game is upon the receipt of a wager or bet by the player. Clearly the game controller unit starts the round of a game where a money instruction is accepted from a player but can it only start a round of a game in those circumstances? Konami points out that integer (f) does not refer to “the instruction” or “the said instruction” but to the more open-ended “an instruction”.
Turning to the specification, bearing in mind that the claim is to be construed in the context of the whole of the specification, the summary of the invention provides that ‘the console unit is configured to accept instructions from a player. The instructions preferably indicate starting a round of game or placing a bet. The console unit is preferably configured to accept money from a player’. In the detailed description of the preferred embodiment, the specification explains that the gaming machine preferably conducts a game having two modes, that is a normal mode and a bonus mode. The specification also explains that the game controller unit preferably conducts a bonus round for free; that is, it allows a fixed bet to be placed without reducing the player’s credits and that at the start of a bonus round the game controller unit enables the console unit to accept a queue to start spinning video reels from a spin button. The experts agreed that bonus games may be free. The skilled reader would understand that bonus games may be free or may require a bet.
Accordingly, in my opinion, the game controller unit is configured to start a round of game in response to an instruction accepted by the console unit in either a normal game or a bonus game; that is, the round of game may be a normal game commenced by money instructions from a player, a bonus game commenced by money instructions from a player, or a bonus game where the instructions of a player are accepted by the console unit but do not involve a money instruction.
As with integers (b) to (d), the integers referrable to the game controller unit are listed functionally and sequentially. The game controller unit is configured, or programmed, to start a round of a game in response to instruction as set by the console unit and then to determine the arrangement of integer (g). This integer requires an arrangement of the symbols at random but on the Condition. Integer (g) does not make it clear whether, at this stage, the reels have spun. It refers to a determination of an arrangement of the symbols. The claim does not refer to the actual spinning of the symbols until integer (i).
Then, integer (h) is the step where the game controller unit retrieves the winning combination from the arrangement of symbols and provides the player with an award. That award, which depends on the winning combination retrieved from the arrangement of symbols, may be a bonus game but not necessarily so. There is no reference in claim 1 to a bonus game, unlike claim 4 to which I shall return.
Integer (i) relates to the display controller unit, which is configured to cause the display unit to spin the symbols of the two or more columns from the same position in synchronisation and to stop the symbols in the two or more columns at the same position to display the arrangement of the symbols determined by the game controller unit. This supports the conclusion that integer (g) refers to the determination itself which is described in the specification by reference to the game controller unit including a CPU, a ROM, a RAM, a credit controller unit, a console unit, a payout controller unit, a random-number generator unit, a lighting controller unit, a sound controller unit and a display controller unit as set out in Figure 2.
Integer (i) refers to a bonus game. The specification explains the random and independent spinning of the reels in a normal game. The spinning of the wheels in synchronisation and the stopping of the symbols in two or more columns in the same position (integer (j)) are consistent with a bonus game and not a normal game.
Elucidation by the expert witnesses
Mr Ellis understands the phrase “round of a game” to have a special meaning when understood in the context of claim 1 and in the light of his experience of gaming machines in Australia at the priority date. He says that the phrase means ‘everything that occurs in gameplay between the placing of wagers … [and] corresponds to a “play” of a game’ which, in his experience:
commences when the player places a wager that is deducted from their credit, and which is not part of any previous play. Any events that trigger from the same wager such as a free spin feature or an optional gamble are part of the same play. Only when the game has finished all events from the wager, and any win is taken and added to the credit balance, is that play of the game over.
That is, in Mr Ellis’s opinion, claim 1 restricts the start of a round of a game to the acceptance of a wager. This opinion is based upon his construction of the integer of the console unit as being configured (it would seem to be in the sense of restricted) to responding to the placing of a wager. He takes this view even though the specification suggests that the instructions from the console unit could include something other than the placing of a wager. Mr Ellis says that in his opinion the wording of claim 1 is clear, that the ‘instruction accepted by the console unit’ is limited to the acceptance of money instructions (that is, a wager).
In concurrent evidence, Mr Ellis explained that bonus rounds or games are very common and that bonus games are a focal point for a player playing a game. A bonus game may be a free spin, or certain reels may be held while other reels re-spin, or the screen is replaced and the player may touch the screen to win a prize, or it could be a jackpot feature. A bonus game may be referred to as ‘a bought feature game’, which is a bonus game for which the player pays and is distinct from a free game feature.
A bonus game as described by Mr Ellis is free in most machines in the industry; however, it encompasses both free features and bought features. Mr Ellis accepted that, as described in the specification, the console unit is preferably configured to accept money from a player, so that while there is an emphasis on the money side, the console unit can include other elements as well.
Mr Ellis, in concurrent evidence, gave a detailed explanation of his construction of the claims, taking into account the terms that he said conveyed a special meaning to him. His construction was, however, based upon his understanding that the preferred embodiment fits within the summary of the invention and that the claims would fit within the summary of the invention. He construed the claims in terms of the meaning that he said would be understood by the understanding of a skilled worker in the gaming industry and also in the context of the patent as a whole.
Mr Castellari agreed with that approach. Mr Castellari was asked to explain the meaning of the symbols being on the reels in the same order and the same positions. He said that the reel strips are mapped in exactly the same way in the parallel strips so that the symbols are the same and in the same position vertically; when the reels stop they will be in the same position on the screen horizontally. That is, as Mr Ellis agreed, “the same position” meaning that they are in the same position in terms of end point position, or the same position in terms of ‘behind-the-scenes software stop location’. Mr Ellis expanded on that explanation and agreed that ‘mapping’ does two things: it deals with the ordering of the symbols one after another down a column and the location on the column where each of those symbols is positioned. The experts agreed that in the preferred embodiment, the reel strip is exactly the same and each symbol is in the same stop position for the synchronous reels.
The experts agreed that the expression in integer (d) of claim 1 ‘and stop the columns and symbols, the two or more columns being arranged in a predetermined position with respect to one another’ does not mean that the symbols are necessarily in the same position at that point.
As to the ‘console unit configured to accept money and instructions from a player’, in integer (e) of claim 1, Mr Ellis understands that the console unit is only configured to accept money or instructions from a player. He interprets “instruction” in integer (f) of claim 1 to mean a money instruction at this point. A money instruction in terms of starting a round of a game would only occur in two ways. It would either occur as the start of a new game that is unrelated to any other game or it would be to initiate a bought feature game. According to Mr Ellis, because it is dependent on a previous trigger it is still related in some way to a previous play but is a distinct game unto itself. The symbols have been arranged at random on the Condition. This results in a winning combination and provides the player with an award. As Mr Ellis described it:
·the wager is placed to start the game;
·the reels spin;
·it arranges the symbols in the same order and then stops them in the same order and at the same positions in at least two of the columns;
·it provides an award if appropriate, based on the winning combination;
·during that spin it will occur in synchronisation; and
·as it is a money instruction, if it is an unrelated game, a new play of the game will encompass all of those elements. If it is in response to a bought feature game it would operate in the same manner except that it would be using a different set of mathematics to the game that had produced the trigger event.
Mr Castellari said that he essentially agreed with Mr Ellis’s reading of the claim subject to:
·a reservation about the definition of money instruction; and
·in the normal game play he does not agree that there is a synchronous end of the game or that the claim, as construed, provides that on all occasions the reels will stop in the same place. This is referred to in a bonus round but not necessarily in the normal game play.
As to the money instruction, Mr Castellari explained that the bonus could be a free bonus still using the same console unit. He distinguished between ‘starting the game … [and] starting a paid bonus’. That is, if the player is awarded a free bonus set of games, the same control panel or console unit could launch that set, even though there is no money component.
Mr Ellis explained that claim 1 does not refer to a bonus game because the claim provides that the arrangement of the symbols is determined at random. As Mr Ellis explained:
The wager obviously can result in a random arrangement that subsequently yields a feature event, but – but that isn’t actually been mentioned within here. In a situation where it doesn’t have that – where the random arrangement doesn’t yield a – a bonus play I would still take it that each of these elements would have to occur for – for … to be covered by this – this patent.
Mr Castellari did not express a contrary view. In expanding that evidence in response to a question from Konami’s counsel, Mr Ellis said:
So “the two or more columns” is obviously referring back to integer C, the arrangement of the symbols in the same order in two or more columns. It’s still – is still functioning, as a slot game does, by way of random results. So it’s generating stop positions or – for a certain number of reels, causing the spin to occur, causing the stop to occur, and then assessing whether a win has – has taken place. With the – with that random nature there is no guarantee that a – that a bonus round will occur. With the – with the award that is mentioned in integer H, the award from the winning combination could be a feature sequence. It could be that the arrangement of symbols triggers a feature sequence, the award being the – a feature event or a bonus event, for example, or bonus and feature are the same, but just to put it into the terms of this patent.
But because of that randomness, and given the infrequent nature of bonus events, it’s – it’s unlikely to occur on any given play, given this is talking about a monetary instruction that has got the synchronised arrangement – synchronised spinning, the symbols being arranged in the same order, and since there is no guarantee that a bonus round can occur, I take it that it’s referring to a normal play of the game.
Mr Castellari agreed with this latter explanation.
In further explanation of what is meant by ‘random’, Mr Ellis said at:
Two of them are going to be the same, and they have still been generated from a random result in and of themselves. So it’s – it’s still going to generate a stop position, and then it’s just going to display, for example, that stop position on two of the columns.
Again Mr Castellari agreed, adding that it could be the case that there are three reels that are synchronous. These comments were addressed to integer (g) and Mr Ellis clarified that he was not trying to suggest that a bonus game, if it is spinning reels, would not also be random.
A minor issue did arise as to whether integers (b) to (d) of claim 1 indicated that the claim required each step to take place in sequence. Mr Ellis explained that, as he read the claim, the display unit is configured to display symbols in the plurality of columns and spin the symbols. He said that this, to him, indicated a point in time which a play has commenced. That is, the arranging is happening in between the spin starting and stopping. The specification explains that the game controller unit determines the way in which the various events happen, such as the selection of the winning combination and the instructions to the console unit, in what is described by Aristocrat as a “backroom operation” by comparison with the “front of house” aspect of the display unit which displays what the person playing the game perceives. That is, integers (b) to (d) address the sequence in which the steps must take place (display – spin – arrange – stop), whereas integers (f) to (g) address aspects of the arrangement of the symbols.
Accordingly and relevant to this aspect of the dispute, claim 1 requires, in sequential order and cumulatively that:
·The symbols in the plurality of columns are arranged in the same order in two or more of the columns during the spinning of the reels.
·The columns of symbols are stopped with two or more columns being arranged in a predetermined position with respect to each other. At this stage there is no requirement that the symbols are in the same position.
·The console unit is configured to accept money instructions from a player. At this stage it is not, within that integer, limited only to money instructions.
·The game controller unit is configured to start a round of game in response to instructions accepted by the console unit. In context, the skilled reader would understand that this was in response to a money instruction.
·At this stage, there is a determination of an arrangement of the symbols at random but on the condition that the symbols are arranged in the same order and at the same positons in the two or more columns.
·Then, a winning combination is retrieved from the arrangement of symbols and the player provided with an award. The nature of the award is not detailed.
·The display controller unit is configured to cause the display unit to spin the symbols of the two columns from the same position in synchronisation.
·The symbols are stopped in the two or more columns at the same position to display an arrangement of symbols determined by the game controller unit.
I accept that the skilled addressee would, as stated by Mr Ellis and as agreed to by Mr Castellari, understand the reference to ‘start a round of a game’ to be the commencement of a normal game within which, by reason of integer (h), there may be an award. Where there is an award, the symbols of the two or more columns spin ‘from the same position in synchronisation’ and stop at the same position. Although the console unit may accept instructions other than money instructions from a player, as described in the specification, the claimed invention is understood by the skilled addressee to apply to a round of a game consequent on a money instruction.
The integers of the claim refer to the different parts of the gaming machine: the display unit, the console unit, the game controller unit and the display controller unit. Integers (b) to (f) are referable to a normal game and do not include integers referable to a bonus game of the specification; there is no requirement for the Condition. Integers (g) and (h) provide for an award. Integers (i) and (j) concern the presentation on the display unit. This displays the reels spinning from the same position in synchronisation and stopping the symbols in the two or more columns in the same position. This is consistent with the Condition and a bonus game.
Conclusion on Claim 1
Claim 1 read according to its terms and in the light of the specification as a whole refers to a round of a game, commenced as a normal game in which the player may win an award. This is in the control of the game controller unit.
The display unit is controlled by the display controller unit. The relationship between these two integers is not completely consistent in determining whether or not the claim refers to a bonus game. The display unit integers, (b) to (d), do not refer to the symbols being stopped in the same position. The display controller unit is configured to stop them in the same position.
Even in the description of the preferred embodiment, where a “round of game” is described as commencing with a player inserting coins or bills and the bet is accepted by the console unit, there is provision for the console unit to accept a new bet or an instruction from the player to convert his/her credits into cash.
The requirement that a unit be configured to do this is not restrictive of the totality of its functions. However, when the claim is read as a whole, the skilled reader would understand that claim 1, when referring to the start of a round of game, to be referring to the start of a game upon acceptance of money of a normal game.
This is notwithstanding that a bonus game may also be commenced by a monetary wager. The fact that the configurations specified in claim 1 are satisfied does not mean that other additional functions cannot be specified, based on the specification function. When the claims are read as a whole, it can be seen that there are claims directed to integers specifying bonus games.
Claim 4
Claim 4 is a dependent claim on claim 1 wherein the additional integers are:
(l)the game controller unit is configured to determine an arrangement of symbols at random on the condition that the symbols are arranged in the same order and at the same positions in the two or more columns in bonus games; and
(m)the display controller unit is configured to cause the display unit to spin all columns of symbols independently in normal games; and
(n)spin the symbols of the two or more columns from the same position in synchronization with each other in the bonus games.
When the claim is fully written to include dependency, it is as follows:
(a) A gaming machine comprising:
(b)A display unit configured to (i) display symbols in a plurality of columns, (ii) spin the symbols, (c) arrange the symbols in the same order in two or more columns, and (d) stop the columns of symbols, the two or more columns being arranged in a predetermined position with respect to one another;
(e) a console unit configured to accept money instructions from a player;
(f) a game controller unit configured to:
start a round of a game in response to an instruction accepted by the console unit;
(g)determine an arrangement of symbols at random on a condition that the symbols are arranged in the same order and at the same positions in the two or more columns;
(h)retrieve a winning combination from the arrangement of symbols, and provide the player with an award depending on the winning combination retrieved from the arrangement of symbols;
(l)[sic] determine an arrangement of the symbols at random on a condition that the symbols are arranged in the same order and at the same positions in the two or more columns in bonus games;
(i)and a display controller unit configured to cause the display unit to spin (m) all columns of symbols independently in normal games, and (n) spin the symbols of the two or more columns from the same position in synchronisation with each other in the bonus games, and (j) stop the symbols in the two or more columns at the same position to display the arrangement of the symbols determined by the game controller unit.
Aristocrat submits that it is claim 4 that is directed to the bonus game; that is, it provides a narrowing of claim 1 in that it is more prescriptive as to the operation of a bonus game. The gaming machine of claim 4 provides for the operation of a normal game and a bonus game. In the bonus game which arises if there is an award as set forth in integer (h), there is a further arrangement of the symbols in the same order in the paired columns and the columns of symbols are spun synchronically as required. That is, claim 4 when dependent on claim 1 is for a gaming machine that accords with the preferred form of the invention set out in the summary of the invention.
Konami submits that the summary of the invention in the specification in the description of the preferred embodiment shows that ‘an instruction’ ‘to start a round of the game’ is not dependent upon the placing of a bet or wager. It can be accepted that the description refers both to the placing of a bet and also to an instruction from the player which is not limited to the placing of a bet. However, this does not necessarily answer Aristocrat’s submission that, to the skilled addressee, a round of the game means and conveys the start of a fresh normal game, which includes any bonus game or award. This construction is consistent with Mr Castellari’s evidence that a bonus game may not involve a money instruction and that the same control panel could be used to launch that free game.
Konami submits that claim 1, otherwise, does not fulfil the promise of the invention, that there is an inconsistency between dependent claim 4 and independent claim 1 and that the preferred embodiment falls outside the scope of claim 1. However, it is not uncommon that a patentee chooses to claim the preferred embodiment in a dependent claim while including a broader independent claim.
As to claim 4, Konami submits that it is a claim in which:
(a)in normal games, the columns of symbols spin independently; and
(b)in bonus games, the two or more columns:
(i)have symbols that are arranged in the same order and at the same position;
(ii)are spun in synchronization, starting at the same position and ending at the same position.
I accept that characterisation.
Claim 4 narrows claim 1 by restricting the manner in which the bonus game operates. That is, the game controller unit is configured such that the arrangement of symbols determined at random are arranged in the same order and in the same positions in the two or more columns in bonus games. Further, the columns are spun independently in normal games and synchronously in bonus games. These are additional requirements in that there is no requirement in claim 1 for independent spinning in a normal game or synchronised spinning in a bonus game.
The fact that claim 4 is dependent on claim 1 supports a construction of claim 1 that the round of a game is understood to refer to the commencement of a normal game in which an award or bonus game may be obtained. In claim 1 the display controller unit is configured to display the situation where the symbols are spun on two columns from the same position in synchronisation but there is no differentiation in integer (i) of claim 1 as set out in integer (m) and (n) of claim 4. As claim 4 refers specifically to bonus games, it would suggest that claim 1 encompasses a bonus game. This is consistent with the construction that a bonus game is part of the round of a game that commences with a new normal game in which there is an award or bonus.
Claim 7
Claim 7 is a method claim as follows:
(o)A method of displaying symbols on a gaming machine comprising: displaying symbols in a plurality of columns on a display, and
(p)arranging the symbols in the same order in two or more columns, the two or more columns, the two or more columns being arranged in a predetermined position with respect to one another.
(q)determining an arrangement of symbols at random on a condition that symbols are arranged in the same order and at the same positions in the two or more columns by a controller;
(r) retrieving a winning combination from the arrangement of symbols;
(s) spinning symbols of the plurality of columns in synchronization; and
(t)stopping the symbols of the two or more columns at the same position in a predetermined order to display the determined arrangement of symbols; and
(u)providing the player with an award depending on a winning combination retrieved from the determined arrangement of the symbols.
The issue between the parties is whether any part of claim 7 is limited to the play of a normal game.
Konami submits that the claim is not limited and may apply to both a normal game and a bonus game; that is, to games having normal and bonus rounds.
Konami points out that claim 7 does not specify on its face whether it is about normal games or bonus games. The words do not appear. Konami submits that there is no warrant for “reading them in”. Rather, Konami submits, the language of the claim dictates against it and dictates that the claim is referring to a single round.
Aristocrat submits that the claim defines a two stage process in which integers (o) to (r) address a normal game play and integers (s) to (u) concern a bonus play. Aristocrat draws attention to the fact that claim 7 is the independent method claim that corresponds with the first product claim, claim 1. It submits that integer (r) refers to the “winning combination” which can result in, for example, either a monetary award or a trigger event leading to a bonus play. Then, if the bonus play arises, integers (s) and (t) occur in chronological order. Integers (s) and (t), Aristocrat submits, do not apply to or describe normal game play. Integer (u) relates to the provision of an “award” which follows either integer (r), if the award is a monetary award following normal game play, or if the award is given at the end of bonus game play following integers (s) and (t).
Claim 7 sets out chronological or sequential steps of a method. It is only integer (r) at which a winning combination from the arrangement of symbols is retrieved. That is, integers (o) to (q) refer to the game played prior to a winning combination being retrieved; that is, a normal game. Logically, what follows from the retrieval of a winning combination, the other steps subsequent to that, is a bonus game, where the symbols spin with the plurality of columns in synchronisation. The symbols of two or more columns are stopped at the same position in a pre-determined order to display the determined arrangement of symbols and the player is provided with an award, depending on the winning combination retrieved from that determined arrangement of the symbols.
The specification explains how the winning combination is determined and retrieved.
I accept that when claim 7 is read on its own and within the totality of the claims, it clearly refers to a winning combination with a subsequent spin of the reels. That is, it refers to a bonus game. The question is whether the integers that precede the trigger of the game combination are preliminary to the bonus game, part of the way in which the bonus game is determined, or whether those integers refer to the playing of a game.
There is no reference within claim 7 to starting a round of a game, a matter relied on strongly by Aristocrat in the understanding of claim 1.
Claim 7 rather refers to a method of displaying symbols on the gaming machine. When the description in the specification is read, and in particular the description of a bonus game, it is apparent that the provision of an award depends on a winning combination of symbols appearing on stopped video reels. That itself involves a method of determining the winning combination and retrieving it in order to allow for the subsequent spin of the wheels stopped according to the Condition.
In my view claim 7 refers only to a bonus game. The retrieval of the winning combination from the arrangement of symbols of integer (r) is made following the determination of an arrangement of symbols at random on the condition of integer (q) which occurs after the necessary arrangement of the symbols in the same order in two or more columns being arranged in the predetermined position with respect to one another, where those symbols are displayed in the plurality of columns on a display. There is no reference in claim 7 to a normal game.
Claim 9
The issue of construction concerns integer (cc) of claim 9 that provides that ‘the pair of columns being arranged in a predetermined position with respect to one another and independent of a location associated with the trigger condition’ (emphasis added). The issue of construction turns upon the meaning of the word “independent”. It is common ground that “independent” bears its ordinary English meaning.
Aristocrat submits that the ‘trigger condition’ referred to at the end of integer (cc) is the same as the trigger condition in integer (y) which is detected by the game controller unit in normal game play. Aristocrat submits that the trigger condition in normal game play relates to symbols on particular, predetermined columns as provided for in integer (x)(ii). Aristocrat submits that the words in integer (cc) ‘of a location associated with the trigger condition’ convey the ‘pair of columns’ at the beginning of that integer, which are spun synchronously in bonus game play, must be different to the columns on which the trigger condition appears. That is, that the paired columns or reels must be independent from the columns or reels on which the trigger condition appears so that the paired columns or reels must be in a different location to the columns or reels on which the trigger condition appears.
Konami submits that the words mean that the pair of columns are arranged in a predetermined position with respect to one another and that this is not affected by the location of any trigger condition, or any component of the trigger condition, that appears in a normal game. Thus, says Konami, the two columns that spin and stop together in the bonus game may or may not be the same column or columns in which any trigger condition, or any component of the trigger condition, appeared in the normal game.
“Independent” is defined in the Macquarie Dictionary (5th edition, 2009) as, relevantly:
1. not influenced by others in matters of opinion, conduct, etc.; thinking or acting for oneself; an independent person. 2. not subject to another’s authority or jurisdiction; autonomous; free. 3. not influenced by the thought or action of others: independent research. 4. not dependent; not depending or contingent on something else for existence, operation, etc. 5. not relying on another or others for aid or support. 6. declining others’ aid or support; refusing to be under obligation to others. 7. having the means to provide oneself with at least the basic necessities of life, without reliance on others or on other sources of income: his inheritance has made him financially independent.
It is defined in the Shorter Oxford English Dictionary on Historical Principles (6th edition) (Oxford University Press, Oxford, 2007) at 1362 as relevantly:
2 a Not dependent or contingent on something else for its existence, validity, effectiveness, etc. Foll. by of … b Not influenced or affected by others; …
I accept Konami’s construction. The specification does not support the restriction that Aristocrat advances. The specification refers to trigger symbols that “are scattered” on the stopped video reels. Further, in Figure 5B, a trigger symbol appears on the same reel as does the symbol on one of the two paired columns with the symbols at the same position. The symbols are stopped in a randomly determined arrangement on the pair of columns. The trigger condition which is not specified to be limited to a symbol is, according to integer (y) in claim 9, detected within the normal game and responsively initiating a bonus game. The pair of columns which are arranged in a predetermined position with respect to one another are independent of; that is not influenced by, the location associated with the trigger symbol. Accordingly the trigger symbol can be on either of the pair of columns or not. The claim does not limit how or in what form the trigger condition occurs. The two columns that spin and stop together in the bonus game may or may not be the same column or columns in which any trigger condition appears. The word “independent” is to be given its ordinary English meaning in that the pair or columns and the location of the trigger condition are not dependent upon or contingent upon each other. There is no requirement that they be separately located.
CONCLUSION
The disputed claims should be construed as follows:
·“Round of a game”, in claim 1, be construed as the commencement of a normal game in which an award or bonus game may be obtained.
·Integers (b), (c) and (d) of claim 1 be limited to a normal game.
·Claims 1 and 4, read together, be construed to encompass a bonus game.
·Claim 7 be limited to a bonus game.
·The word “independent”, in claim 9, be given its ordinary English meaning in that the pair or columns or the location of the trigger condition are not dependent upon or contingent upon each other.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 19 February 2015
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