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March 21, 2019Blog

Even Konami Code Couldn’t Rescue Its Slot-machine Game-related Patents from being Invalidated under Alice

If you’re a child of the 80’s, the name Konami likely takes you back to sitting in front of a tube TV playing some Konami-created game on your Nintendo Entertainment System. For me, my two favorite Konami games were undoubtedly Contra and Gradius. Then, there was the “Konami code” (↑↑↓↓←→←→BA) entered quickly at the beginning of either game to get full power-ups for your ship in Gradius, or 99 lives in Contra. I can taste the Ecto Cooler Hi-C just thinking of that code.

With that nice trip down nostalgia lane out of the way, on to why Konami is showing up on a patent-related blog. In news to me, Konami has a wing that develops slot-machine games used in casinos and your friendly neighborhood bar. It was the slot-machine gaming division, Konami Gaming, Inc., that in 2014 sued High 5 Games, LLC in Nevada federal court alleging that High 5 had slot-machine-type games that infringed four Konami patents related to gaming machines with runs of consecutive identical symbols. The patents disclose variations of slot-gaming devices using reels depicting identical symbols.

High 5 moved for summary judgment on Konami’s infringement claims for several reasons, including that the claims were invalid as abstract under 35 U.S.C. § 101. More specifically, High 5 argued that the claims at issue were directed towards essentially game rules and as such were directed to the abstract concept of the manner in which the “game” is played and thus patent-ineligible concepts. Konami’s spread-gun response was that (1) the claims covered gaming machines that displayed virtual reels having sections of identical, repeating symbols separated by sections of non-identical and thus non-repeating symbols, so that the displayed sections of repeating symbols heightened player anticipation of a potential win (overcoming a problem in the industry of offering novel and stimulating variations); and (2) even if the claims are deemed to recite generic computer systems components that are not in themselves inventive, the limitations defined an inventive concept (reels exhibiting identical symbols in consecutive positions) dependent on an unconventional configuration of those components.

The district court turned to the Supreme Court’s decision in Alice in analyzing whether Konami’s patents’ claims were directed to an inventive concept. Using the Alice analysis like a laser turret, the district court cut through Konomi’s arguments finding that Konami’s patents’ claims individually and collectively were invalid for abstractness.

Konami used its continue and appealed the district court’s ruling to the Federal Circuit, but this week the Federal Circuit, in a nonprecedential one-line order, affirmed the district court’s ruling. While Bill and Lance may live another day to fight Red Falcon, Konami’s slot-machine game patents are no more than invalid patents left in Alice’s wake of non-patentable abstract concepts.

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