Opinion
No. 99 C 7539
March 29, 2002
MEMORANDUM AND OPINION ORDER
Plaintiff Douglas Press Inc. ("Plaintiff") charges several of Defendant World Wide Press, Inc.'s ("Defendant") products with infringing either U.S. Patent No. 5,046,737 entitled "Lottery-Type Game System With Bonus Aware" ("`737 patent") or U.S. Patent 5,407,200 entitled "Lottery-Type Gaming System Having Multiple Playing Levels" ("`200 patent"). Defendant has moved this Court to construe the patent claims in this case. On July 26, 2001, this Court held a Markman hearing at which the parties presented their respective interpretations of Claim 1 of the `737 Patent and Claims 1 and 2 of the `200 Patent. See Markman v. Westview Instruments. Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) ( en bane), aff'd 517 U.S. 370 (1996). The following represents this Court's constructions of the claims at issue in the patents in this case.
I. Claim Construction Standards
In Markman, the Federal Circuit held, and the Supreme Court affirmed, that it is the courts' responsibility as a matter of law to construe the claims of patents for the jury. 52 F.3d at
979. Claim construction is "the process of giving proper meaning to the claim language," the fundamental process that "defines the scope of the protected invention." Abtox, Inc. v. Exitron game card was to be reconstructed as multiple cards.
This Court agrees with Plaintiff and construes "a master game card" to mean one unitary card. While indefinite articles such as "a" or "an" can mean "one or more" in some cases, this Court finds that, in this case, the patentee did not intend a "special" definition for "a master game card" see Bell Comm. Research, Inc. v. Vitalink Comm. Corp., 55 F.3d 615, 620 (Fed. Cir. 1995), and the prosecution history does not suggest "a master game card" means anything other than a single card. 2. Winning a prize, or having the opportunity to win a prize, at the second level
This Court notes that two other judges have independently construed claim 1 of the `737 patent in unpublished opinions. Both Magistrate Judge Schenkier, in Douglas Press, Inc. v. Arrow Int'l, Inc., No. 95 C 3863 (N.D.Ill. Feb. 4, 1999), and District Judge Coughenour, in Bonanza Press, Inc. v. Douglas Press, Inc., No. C00-0133C (W.D. Wash. Aug. 17, 2000), also interpreted "a master game card" to mean one single master game card.
The second claim construction issue is whether the `737 patent requires the player(s) selected as the winner(s) of the second level of play win a prize, or have an opportunity to win a prize, before advancing to the third level of play. Defendant argues that there is no language in the claim that requires a prize be paid at the second level. Rather, the specification states "the 10 player[s] identified may automatically win a predetermined award." Col. 1, II. 21-23. Defendant argues that use of the term "may" dictates that the award is optional and not required.
Plaintiff on the other hand, counters that it is established throughout this patent's specification that it is the opportunity to win a prize at every level that defines the very heart of this game. For example, as stated in the outset of the patent: "As will be appreciated, affording players an opportunity to win awards in different ways enhances the entertainment value of the game." Col. 1, II. 34-35. In fact, Plaintiff argues that the language, "may win" an award, precisely means the opportunity to win an award, and not that an award is optional. This Court