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Willful Infringement After Halo: Back to the Future?
True or False - PTAB Trials and Alice Motions Simplify the Case?
This panel will discuss cases to watch, including, but not limited to, TC Heartland LLC v. Kraft Food Brands Group; SCA Hygiene Products AB v. First Quality Baby Products; Impression Products Inc. v. Lexmark Int’l Inc.; Life Tech. Corp. v. Promega Corp.; Samsung v. Apple; In re Aqua Products; Wi-Fi One LLC v. Broadcom Corp., Amgen v. Sandoz, and others.
Marshall Gerstein partners Benjamin T. Horton, Mark H. Izraelewicz, and Michael Muczynski will also attend.
To learn more about the Symposium and to register, click here.

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Many businesses rely on their websites to promote their company and drum up business. Having a “professional” looking web page is considered a must and companies spend a lot of money in creating and maintaining their web presence. However, a recent case out of the Ninth Circuit Court of Appeals demonstrates that care must be taken in connection with the creation of a company’s website, especially when obtaining “stock” or other photos from a third party to help promote your business.
Kast worked with the developer to give his ideas as to what he wanted his new website to look like and apparently made numerous favorable comments towards an existing website for Wells Fargo Private Bankers. The revamped website for Atherton Trust that was eventually created included three photos that had apparently been copied from the Wells Fargo website. These three photos were taken by Jim Erickson and licensed to Wells Fargo for use on its web page. Neither Kast, his company or his web developer obtained licenses for the photos to use on the Atherton Trust website. Erickson soon learned of the use of his photos on the Atherton Trust website and in July 2011, sent a cease and desist letter to Atherton Trust demanding that his photos be removed and payment for the infringement of his photos copyrights. Although Kast immediately removed the three offending photos from the Atherton website, he declined to pay any money to Erickson. Erickson sued and, after a jury trial, was awarded damages of $450,000 ($150,000 for each offending photograph). Kast appealed this decision to the Ninth Circuit.
The first issue of Kast’s appeal dealt with the jury’s finding that Kast was vicariously liable for copyright infringement because he had employed a developer who had directly infringed on Erickson’s copyrights in his photos that were used on the Atherton Trust website. The Ninth Circuit began by noting that the elements that a Plaintiff must prove to establish vicarious liability are that the defendant has “(1) the right and ability to supervise the infringing conduct; and (2) a direct financial interest in the infringing activity.” Kast focused his argument to the Ninth Circuit on the second prong and claimed that there was no evidence that he had received a direct financial benefit as a result of the use of the photos on the Atherton Trust website. The Ninth Circuit agreed with him and held that it was improper to award damages against him on a theory of vicarious liability.
The Ninth Circuit reasoned that, “[t]he essential aspect of the `direct financial benefit’ inquiry is whether there is a causal relationship between the infringing activity and any financial benefit a defendant reaps…” Erickson claimed that Kast had received at least three direct financial benefits as a result of the infringement: (1) the photographs drew customers to the Atherton Trust website; (2) Kast avoided paying licensing fees for the use of the photos; and (3) Kast was able to “rush” his new website’s launch. The Ninth Circuit rejected each of these arguments.
First, the Ninth Circuit held that there was no evidence that any consumer went to the Atherton Trust website to view Erickson’s photographs or purchased any services from Atherton Trust as a result of the photographs. Next, the Ninth Circuit rejected the argument that the avoidance of licensing fees could be a direct financial benefit in this case. The Court reasoned that avoiding licensing fees could only be a direct financial benefit if the web page developer had somehow lowered his fees as a result of avoiding having to pay licensing fees. However, there was no evidence that the developer had done so. Finally, the Ninth Circuit rejected the argument that the “rush” of the website was a direct financial benefit because, once again, there was no evidence that launching the website earlier had resulted in any business to Atherton Trust.
While the Ninth Circuit held that it was error to impose liability against Kast under a vicarious liability theory, it did affirm liability against him under a contributory liability theory.
The Ninth Circuit found that Kast was liable for contributory infringement, which is when a defendant “(1) has knowledge of another’s infringement; and (2) either (a) materially contributes to; or (b) induces that infringement.” Kast’s attack on this theory was really one directed at the jury instructions given by the trial judge, which included a definition of “knowledge” as including Kast having only a “reason to know” of the infringement. Kast argued to the Ninth Circuit that only “actual knowledge” or “willful blindness” would be sufficient to impose contributory infringement liability.
However, Kast had failed to raise this objection at his trial. The Ninth Circuit concluded that because of this failure, its review was limited to considering only whether the jury instruction constituted “plain error.” The Court found that the trial court did not commit “plain error” in this regard because there had been inconsistency in prior Ninth Circuit cases regarding the knowledge element for contributory infringement liability.
For instance, in 2013, the Ninth Circuit in Luvdarts, LLC v. AT&T Mobility, LLC, held that “actual knowledge of specific acts of infringement” and “willful blindness of specific facts” would be the only two mental states that allowed for a finding of contributory infringement. However, in 2011, the Court had affirmed a lower court’s decision to instruct the jury that contributory liability could be imposed where the defendant “knew or had reason to know” of the infringement. Thus, because the Court declined to find that this instruction as “plain error,” it affirmed the jury’s finding of contributory infringement against Kast.
Kast urged the Ninth Circuit to reverse the finding of willfulness saying that the trial court had improperly instructed the jury that willfulness could include whether he “should have known” of the claimed infringement. The Ninth Circuit began by nothing that willfulness “requires an assessment of a defendant’s state of mind.” A plaintiff seeking to establish willfulness under the Copyright Act must prove “(1) that the defendant was actually aware of the infringing activity; or (2) that the defendant’s actions were the result of reckless disregard for or willful blindness to the copyright holder’s rights.” (Citing, Unicorlors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 991 (9th Cir. 2017).
The Ninth Circuit concluded that a “should have known” standard does not fit within the statutory framework because it is essentially a negligent standard. To say that a defendant such as Kast “should have known” of the infringing activity meant that, while he may have been negligent, he was not necessarily guilty of willfulness under the Copyright Act. The Ninth Circuit further concluded that had the jury been properly instructed, it may not have found that Kast acted “willfully” and could not have awarded more than $90,000 in damages. Therefore, the Ninth Circuit reversed the verdict and remanded it back to the trial court to make a new determination as to the amount of statutory damages that should be awarded to Erickson.
The facts of the Erickson case serve as a reminder that when developing or updating your company website, you should pay careful attention to where content for the site is coming from and whether any licensing fees should be (and have been) paid. Otherwise, the owners of the website face the prospect of being held vicariously and/or contributorily liable for any content on the web page that infringes on another person’s copyrights.
The Supreme Court has granted review in the matter known as Mission Product Holdings Inc. v. Tempnology LLC, No. 17-1657, where it will decide whether a licensee loses its right to use a licensed trademark if the licensor files bankruptcy and the bankruptcy trustee chooses to reject the licensor’s license agreement. This decision could significantly impact numerous licensees throughout the world if the Court affirms the First Circuit Court of Appeal’s decision below, holding that a licensee loses its right to use a licensor’s trademarks once the licensor has filed a petition for bankruptcy and the trustee has elected to reject the agreement pursuant to Section 365(a) of the Bankruptcy Code.
Under Section 365(a) of the Bankruptcy Code, a bankruptcy trustee can assume or reject a debtor’s pre-bankruptcy executory contracts, depending on whether the benefits of continued performance outweigh the burdens to the bankruptcy estate. Under that provision, a rejection is treated as a breach by the debtor if certain conditions are met. If those conditions are met, the other party to the agreement is entitled to file a claim for damages in the bankruptcy action, however valueless that may be.
The Bankruptcy Code, however, does not address the matter at issue before the Supreme Court, which is whether rejection of a trademark license agreement strips the licensee of the right to use the mark. Although Section 365(n) protects the rights of “intellectual property” licensees, the Bankruptcy Code’s definition of “intellectual property” does not expressly include trademarks. While most trademark practitioners would be dumbfounded if a court were to interpret “intellectual property” in a manner that doesn’t include trademarks, the First Circuit did exactly that.
Accordingly, the Supreme Court has granted review to resolve a circuit split between the First Circuit, whose holding is discussed above, and the Seventh Circuit, which held that a licensee’s trademark rights survive rejection of the agreement in bankruptcy. See Sunbeam Prods. v. Chi. Am. Mfg., 686 F.3d 372 (7th Cir. 2012). This case has caused numerous IP groups, as well as the United States Government, to file amicus briefs. Interestingly, the U.S. Government has stated that a trademark owner cannot revoke a licensee’s right to use the trademark by rejecting its license agreement under the Bankruptcy Code’s contract rejection mechanism.
In contrast, Tempnology, the opposing party, contends the First Circuit made the correct decision. Specifically, Tempnology argues, “The Bankruptcy Code’s strong policy of permitting a debtor to free itself of ongoing obligations under a contract … and the right to reject such obligations applies to the burden of policing trademarks.” As such, Tempnology argues, the First Circuit was correct that a licensee’s right terminate upon rejection.
But this issue was addressed by the American Intellectual Property Law Association’s (“AIPLA”) amicus brief, wherein the AIPLA urged the Court to hold that a licensee’s rights outside of the bankruptcy context govern whether the licensee’s rights survive the licensor’s rejection under the Bankruptcy Code. The AIPLA argues that in the “absence of the Bankruptcy Code specifically addressing trademark licenses, the effect of the breach must be decided under applicable non-bankruptcy law and the language of the contract.” The AIPLA rejected the First Circuit’s rationale that a licensee’s right must terminate in order to avoid restricting a licensor-debtor’s right “to free itself from performing executory obligation” by forcing it to police its marks. The AIPLA contends the First Circuit’s approach was flawed because the duty to monitor a trademark’s use does not arise under the terms of a license agreement, but is instead an independent obligation imposed by federal trademark law.
The United States Government may have said it best: “If a landlord has rented a family an apartment and has agreed to pay the utilities, the landlord cannot later terminate the family’s lease simply by refusing to pay the cable bill[.]” The same principles apply, or at least they should, to trademark licensing agreements. For that reason, among others, I suspect the Supreme Court will overturn the First Circuit’s decision and protect the rights of the licensees.
When a patent applicant files for a patent, the USPTO assigns an examiner to review the application and determine whether the claims are patentable and a patent should issue. If the patent examiner rejects claims in a patent application, the applicant can appeal that decision to the USPTO’s Patent Trial and Appeal Board (“PTAB”). If that appeal is not successful, the applicant has two options for challenging the rejection. The applicant can either 1) appeal the rejection directly to the Court of Appeals for the Federal Circuit or 2) file a civil action in the District Court for the Eastern District of Virginia. 35 U.S.C. §145. Unlike in an appeal to the Federal Circuit, if the applicant brings an action in the district court, “[a]ll the expenses of the proceedings shall be paid by the applicant” regardless of the outcome of the litigation. Id.
There are pros and cons to these two options for challenging an examiner’s decision. The Federal Circuit typically offers faster resolution, but it relies only on the record that was before the USPTO and does not review the matter de novo. In contrast, filing a civil action in district court is slower, litigation expenses may be higher, and the patent applicant is required to pay the USPTO’s expenses regardless of whether the applicant wins or loses. The district court, however, offers the applicant the option to present new evidence that was not presented to the USPTO, and the court must review that new evidence de novo.
Therefore, for the first time in Shammus, the USPTO sought attorneys’ fees as part of its expenses under Section 145’s trademark provision. Allowing recoupment of attorneys’ fees, the Court of Appeals for the Fourth Circuit explained that “the imposition of all expenses on a plaintiff in an ex parte proceedings, regardless of whether he wins or loses, does not constitute fee-shifting that implicates the American Rule.” Shammus v. Focarino, 784 F.3d 219 (4th Cir. 2015). The “American Rule” assumes each party pays its own attorneys’ fees absent explicit statutory authority to the contrary.
The USPTO also makes policy-based arguments for the reimbursement of attorneys’ salaries. It argues that applicants have an alternative appellate process where they do not have to pay the USPTO’s expenses, a substantial amount of attorneys’ time is devoted to Section 145 district court proceedings given the additional discovery and new evidence presented, and it is unfair to make other patent applicants effectively underwrite the cost of Section 145 proceedings.
In its opposition to the petition for certiorari, NantKwest pointed out that “expenses” in Section 145 is at best ambiguous. The fact that “expenses” could be construed to encompass attorneys’ fees or salaries is not sufficient to “specifically and explicitly” authorize attorneys’ fees and overcome the presumption of the “American Rule” that each party pays its own attorneys’ fees absent explicit statutory language to the contrary. The USPTO, however, argues that even if the American Rule applies, “[a]ll the expenses of the proceedings” “is sufficiently specific and explicit to overcome the presumption … and authorize reimbursement of the USPTO’s” attorneys’ salaries.
The Supreme Court will decide this issue in the upcoming months, so stay tuned.
This week, the Supreme Court resolved a split in the circuits regarding an issue in copyright law that affects copyright owners in California. Until now, the law in the Ninth Circuit was that a copyright owner could file suit for infringement as soon as they filed a copyright application in the Copyright Office. However, in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC (U.S. Supreme Court, March 4, 2019), the Court rejected this approach, holding that a copyright owner cannot file suit for infringement until the work has been registered by the Copyright Office.
The plaintiff, Fourth Estate Public Benefit Corp., is a news group who writes online articles. The defendant, Wall-Street.com, is a website for news articles. Pursuant to a license, Fourth Estate licensed its articles to Wall-Street.com. Wall-Street.com cancelled the license, but continued to publish Fourth Estate’s articles, in violation of the license. Fourth Estate filed applications in the Copyright Office to register the copyrights in its articles, and then filed suit against Wall-Street.com for copyright infringement. Wall-Street.com moved to dismiss the complaint on the grounds that Fourth Estate had not registered its copyrights within the meaning of the Copyright Act of 1976, as amended, as of the filing of the complaint. The district court granted Wall-Street.com’s motion to dismiss. The Eleventh Circuit Court of Appeals affirmed.
Copyright protection exists as soon as a work of expression is created. However, under the Copyright Act, a copyright owner cannot file an action for infringement until “registration…has been made.” 17 U.S.C. §411(a).
The circuit courts are divided as to the meaning of the phrase “registration…has been made,” as set forth in §411(a). Some circuits, including the Ninth Circuit, take the “application approach,” holding that a copyright has been registered, and therefore an action for copyright infringement can be filed, once the copyright owner has filed its application for registration and the application has been received by the Copyright Office. Other circuits, including the Eleventh Circuit, take the “registration approach,” holding that a copyright has not been registered, and therefore an action cannot be filed, until the Copyright Office has actually registered the work.
The Supreme Court granted certiorari in the case to resolve the split in the circuits. The Court held that the “registration approach” is the correct interpretation of §411(a), and that “registration” means action taken by the Register of Copyrights.
The Court explained that the first §411(a) sets forth the rule that an action for infringement cannot be filed until registration of the copyright has been made, while the second sentence provides an exception to the rule. The second sentence states that if a copyright application has been submitted to the Copyright Office, but registration has been refused, the applicant can file an action for infringement if they provide notice of the action and a copy of the complaint to the Register of Copyrights. The Court reasoned that if “registration” meant application, then the second sentence would be superfluous; an applicant could just file suit as soon as they filed their copyright application.
The Court said that the third sentence of §411(a) further supports the “registration approach.” That sentence provides that the Register of Copyrights may optionally join an action with respect to the issue of registrability of the copyright. According to the Court, this sentence would be meaningless if a suit could be filed before the Register had acted on the copyright application.
The Court noted that other sections of the Copyright Act support this interpretation. For example, §411(a) refers to examination of the application by the Register of Copyrights, and includes the steps of determining whether the work is copyrightable and deciding whether to allow or refuse registration. The statutes also provide for preregistration, a specific process which allows an applicant seeking a copyright for a work for which predistribution infringement is a risk (such as a film or musical composition) to receive a limited review by the Copyright Office and the right to file an infringement action prior to registration.
Fourth Estate argued that an applicant may run out of time to file suit while waiting for the Copyright Office to register their copyright. The Court found this argument unpersuasive, pointing out that the average time to obtain a copyright registration is about seven months, leaving plenty of time left in the three-year statute of limitations, and that, in certain cases, an applicant can request expedited processing.
So, the message of this case is clear: the best practice for copyright owners in California, and throughout the U.S., is to file an application to register their copyright as soon as possible for any work for which they might, at some time in the future, need to file an infringement suit.
Companies have a number of tools available to them to help protect their intellectual property, including trade secret and other proprietary information that give them a competitive advantage. Many employers utilize detailed provisions in their employee handbooks and employment agreements to protect this information. One key provision has been the use of coworker non-solicitation provisions that prevent a departing employee from seeking to “raid” his or her former coworkers to join him or her at their new place employment, usually a business competitor.
Generally, these provisions state that an employee agrees during their employment, and for some period after their employment ends (usually one year), that he or she will not solicit any former coworkers to seek employment with their new employer. Now, some recent case law has brought the use of these non-solicitation provisions into question as possibly violating section 16600 of California’s Business and Professions Code, which prohibits the use of non-compete provisions except in certain limited circumstances.
The enforcement of non-solicitation of co-worker provisions remained relatively consistent until November 2018 when a court in AMN Healthcare, Inc. v. Aya HealthCare Services, Inc., 28 Cal.App.5th 923, granted judgment against an employer who was attempting to enforce a co-worker non-solicitation provision against former employees. In AMN, the departing employees were recruiters for temporary nurses who left AMN to join a competitor in the industry. AMN sued the competitor and former employees claiming they had violated a contractual provision not to solicit or recruit their former co-workers, i.e. the nurses being hired for temporary nursing assignments.
The Court affirmed summary judgment in favor of the competitor and former employees, holding that the co-worker non-solicitation provision violated section 16600 of the California Business and Professions Code, which provides that agreements that restrain a person’s trade or profession are unenforceable. The AMN Healthcare Court relied heavily on the California Supreme Court’s ruling in Edwards v. Arthur Andersen LLP, 44 Cal.4th 937 (2008), which broadly struck down non-compete agreements preventing employees from competing against their former employers.
We did not have to wait long to see what other courts would do. Two months after the AMN decision, another court followed the lead of the AMN Healthcare Court and is allowing a claim to go forward attacking a co-worker non-solicitation provision. In Barker v. Insight Global, LLC (Jan. 11, 2019 N.D. Cal.), Judge Beth Labson Freeman recently reversed herself and granted the plaintiff-employee’s motion for reconsideration to allow him to state a claim as a class representative against his former employer for the use of co-worker non-solicitation provisions in its employment agreements.
Judge Freeman held that the recent AMN Healthcare decision (her initial order dismissing the claim came three months prior to the AMN Healthcare decision) was likely consistent with the current state of California law regarding these non-solicitation provisions, especially in light of the Edwards v. Arthur Andersen decision. She denied the defendant-employer’s motion to dismiss the former employee’s claim and ruled that plaintiff should be allowed to present a claim that the use of an employee non-solicitation provision in his employment agreement violated section 16600 and was therefore an unfair business practice.
The Barker case is still in the early stages but employers should be concerned that a court has decided to follow the holding of the AMN Healthcare decision. In light of these recent developments, employers should carefully review any non-solicitation provisions in their employment agreements with their attorneys to determine whether they are at risk at facing claims or a result similar to those in the AMN Healthcare and Barker cases.
The dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner. In the second dance step, the dancer takes two steps to each side while opening and closing their legs and their arms in unison. In the final step, the dancer’s feet are still and they lower one hand from above their head to the middle of their chest while fluttering their fingers.
Based upon this refusal, the defendants have filed motions to dismiss the complaint. Specifically, the defendants argue that the mark is not entitled to copyright protection, as Ms. Florence, whose conclusion on behalf of the Copyright Office is entitled to substantial deference, likewise concluded. Defendants also contend that Mr. Ribiero may not be the true owner of the work, as it was created for the Fresh Prince of Bel Air and again used on Dancing with the Stars, both of which raise questions regarding whether the network owns the copyright as a work made for hire. Accordingly, Defendants requested that the matter be dismissed with prejudice.
We’ll keep an eye on the docket and when Mr. Riberio files his opposition to the motion to dismiss, we’ll provide another update.


Citation: MD Code, Natural Resources, § 10-2A-01.
(4) Violate any regulation pertaining to the conservation of the species or to any threatened species of wildlife listed pursuant to this subsection and adopted by the Secretary pursuant to authority provided by this section.
Regulations (b) The Secretary may adopt regulations to implement and enforce this section.
(a) The Secretary shall establish programs, including acquisition of land or aquatic habitat or interests in the land or aquatic habitats, necessary for the conservation of nongame, threatened, or endangered species of wildlife or plants. The Secretary shall use all vested authority to carry out the provisions of this subsection.
(b) In carrying out programs authorized by this section, the Secretary shall consult with the State Secretary of Agriculture and other states having a common interest in particular species of nongame, endangered, or threatened species of wildlife or plants. The Secretary may enter into agreements with federal agencies, other states, political subdivisions of the State, or with individuals with respect to programs designed to conserve nongame, endangered, or threatened species of wildlife or plants, including agreements for administration and management established under this section or utilized for conservation of nongame, endangered, or threatened species of wildlife or plants.
(c) The Governor shall review other programs administered by the Governor and utilize these programs in furtherance of the purposes of this subtitle. All State departments and agencies, in consultation with and with the assistance of the Secretary, shall utilize their authorities in furtherance of the purposes of this subtitle by carrying out programs for the conservation of endangered species and threatened species listed pursuant to § 10-2A-04(f) of this subtitle, and by taking any action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of the endangered species or threatened species or result in the destruction or modification of habitat of the species which is deemed by the Secretary to be critical.
(d) The Secretary shall adopt regulations necessary to implement this section.
Citation: MD Code, Natural Resources, § 10-2A-06.
(a) The Secretary shall conduct investigations of the fish resources of the State in order to develop information relating to population, distribution, habitat needs, limiting factors, and other biological and ecological data to determine conservation measures necessary for their continued ability to sustain themselves successfully. On the basis of these determinations the Secretary shall issue proposed rules and regulations not later than July 1, 1976 and develop conservation programs designed to insure the continued ability of fish deemed in need of conservation to perpetuate themselves successfully. The Secretary shall conduct ongoing investigations of the fish resources of the State and may amend these rules and regulations.
(b) The Secretary, by rules and regulations, shall adopt limitations relating to taking, possession, transportation, exportation, processing, sale or offer for sale, or shipment necessary to conserve fish.
(c) Except as provided in rules and regulations adopted by the Secretary, no person may take, possess, transport, export, process, sell, offer for sale, or ship any fish deemed by the Department to be in need of conservation pursuant to this section, nor may any common or contract carrier knowingly transport or receive for shipment any fish deemed by the Secretary to be in need of conservation pursuant to this section.
Citation: MD Code, Natural Resources, § 4-2A-03.
(3) Violate any regulation pertaining to the species or to any threatened species of fish listed pursuant to § 4-2A-04(f) of this subtitle and adopted by the Secretary.
(a) The Secretary shall establish programs, including acquisition of land or aquatic habitat or interests therein, necessary for the conservation of threatened or endangered species of fish. The Secretary shall use all vested authority to carry out the provisions of this subsection.
(b) In carrying out programs authorized by this section, the Secretary shall consult with other states having a common interest in particular species of endangered or threatened species of fish and may enter into agreements with federal agencies, other states, political subdivisions of this State, or with individuals with respect to programs designed to conserve endangered or threatened species of fish including agreements for administration and management of any that are established under this section or utilized for conservation of endangered or threatened species of fish.
(c) The Governor shall review other programs administered by him and utilize these programs in furtherance of the purposes of this subtitle. All State departments and agencies, in consultation with and with the assistance of the Secretary, shall utilize their authorities in furtherance of the purposes of this subtitle by carrying out programs for the conservation of endangered species and threatened species listed pursuant to § 4-2A-04 (f) of this subtitle and by taking any action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of the endangered species or threatened species or result in the destruction or modification of habitat of the species which is deemed by the Secretary to be critical.
(d) The Secretary shall adopt rules and regulations necessary to implement this section.
Citation: MD Code, Natural Resources, § 4-2A-06.
(a) A custodian may deny inspection of a public record that contains information concerning the site-specific location of an endangered or threatened species of plant or animal, a species of plant or animal in need of conservation, a cave, or a historic property as defined in § 5A-301 of the State Finance and Procurement Article.
(2) any entity that is authorized to take the land through the right of eminent domain.
Citation: MD Code, General Provisions, § 4-350.
Citation: MD Code, Natural Resources, § 8-1806.
Citation: MD Code, Environment, § 14-108.
Citation: MD Code, Natural Resources, § 5-1607.
(2) “Explosives” means normal commercial explosives, blasting agents, and detonators.
(3) “Seismic operations” means the controlled application of vibratory energy from any source to determine if favorable conditions exist for the subsurface entrapment of oil or gas.
(4) “Seismic section” means a graphic, near-vertical display of waveform data that is usually processed by a computer program to facilitate the interpretation of subsurface conditions.
Citation: MD Code, Environment, § 14-109.


D.C. Law Library - § 16–4203. Privilege against disclosure; admissibility; discovery.
↪ § 16–4203. Privilege against disclosure; admissibility; discovery.
(a) Except as otherwise provided in § 16-4205, a mediation communication is privileged as provided in subsection (b) of this section and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by § 16-4204.
(2) A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.
This section is referenced in § 16-4202, § 16-4204, § 16-4205, § 16-4208, and § 16-4210.
Uniform Law: This section is based upon § 4 of the Uniform Mediation Act.


text:
The present application is a continuation application of and claims priority to commonly assigned and co-pending U.S. Application Ser. No. 10/628,544, filed Jul. 28, 2003, by Lardie, titled “Method and Apparatus for Remote Gaming,” which is incorporated by reference herein in its entirety.
Conventional gaming units often allowed a player to wager on, control and view the game initiated at that particular gaming unit. Gaines initiated at another location were not displayed on the gaming unit or otherwise allowed the player control over the remote game via the gaming unit. That is, a player could not wager on a game at a first location and view the progress of that game or make further wagers on that game at a gaming unit at another location. For example, a player who wagers on a conventional multi-player lottery game fills out a card, wagers on chosen numbers and watches a large, public keno display screen to view the progress of the keno game, such as what numbers have or have not been randomly selected. The player must either stay and watch the keno display screen, or return to the keno display screen periodically to check the status of the game (e.g., to see if his numbers were chosen). If the player wants to begin gaming at a gaming unit, which may be at a different location and out of sight of the keno display screen, he is unable to view the progress of the keno game or make a further wager on the keno game without leaving the gaming unit to return to the keno display screen. Sports gaming (e.g., placing a wager on the outcome of a horse race, baseball game, etc.) can result in similar occurrences. Such public display screens were also not personalized to a particular player's gaming decisions and whether the player's gaming decisions coincided with the outcome of the game.
In another aspect, the invention is directed to a memory that may include a computer program that may be capable of being used in connection with a gaming apparatus. The memory may comprise a first memory portion physically configured in accordance with computer program instructions that may cause the gaming apparatus to allow a person to make a wager at a first geographic location with a first value input device; a second memory portion physically configured in accordance with computer program instructions that may cause the gaming apparatus to cause a first video image representing a first game to be generated on a display unit; a third memory portion physically configured in accordance with computer program instructions that may cause the gaming apparatus to determine a first value payout associated with an outcome of the first game; and a fourth memory portion physically configured in accordance with computer program instructions that may cause the gaming apparatus to cause a second video image to be generated on the display unit. the second video image may represent a second game wagered on at a second geographic location with a second value input device. The first video image may represent a first game selected from the group of games wagered on at the first geographic location, the first group of games including video poker, video blackjack, video slots, and video bingo, in which case the first video image may comprise an image of at least five playing cards if the first game comprises video poker; the first video image may comprise an image of a plurality of simulated slot machine reels if the first game comprises video slots; the first video image may comprise an image of a plurality of playing cards if the first game comprises video blackjack; and the first video image may comprise an image of a bingo grid if the first game comprises video bingo.
It should also be understood that, unless a term is expressly defined in this patent using the sentence “As used herein, the term ‘——————’ is hereby defined to mean. . . ” or a similar sentence, there is no intent to limit the meaning of that term, either expressly or by implication, beyond its plain or ordinary meaning, and such term should not be interpreted to be limited in scope based on any statement made in any section of this patent (other than the language of the claims). To the extent that any term recited in the claims at the end of this patent is referred to in this patent in a manner consistent with a single meaning, that is done for sake of clarity only so as to not confuse the reader, and it is not intended that such claim term by limited, by implication or otherwise, to that single meaning. Finally, unless a claim element is defined by reciting the word “means” and a function without the recital of any structure, it is not intended that the scope of any claim element be interpreted based on the application of 35 U.S.C. § 112, sixth paragraph.
FIG. 2 illustrates a second possible embodiment of a casino gaming system 10 a that permits a player to remotely monitor and wager on a remote multi-player game such as a lottery game or sports gaming by multiple players on a sporting event. The casino gaming system 10 a may be modeled similar to the casino gaming system 10 described above with reference to FIG. 1. Although the following description addresses the use of a network 12 a of gaming units 20, it should be understood that the network 14 of gaming units 30 may have the same design as or be modified to resemble the network 12 a described below. The network 14 of gaming units 30 may replace the first network 12 a or be operatively coupled to the first network 12 a, as referred to above.
The input terminal 54 may be used by the player as a value input device to place a wager and may be located remotely from the gaming units 20, the kiosks 21, the handheld devices 23 or any other device with a player tracking unit 26 a, 26 b, 26 c, such as in a different floor, a different room, a different area of a room, a different casino, etc. The input terminal 54 may include a coin slot or acceptor, a paper currency acceptor, a ticket reader/printer and a card reader similar to those described below with a gaming unit 20, and which may be used to input value to the input terminal 54. The wager may be on a multi-player game such as a sporting event, a lottery game, etc. The player may use the input terminal 54 to register for a multi-player game using the player identification, designate the amount of the wager, select a sporting event and outcome of the sporting event, or select game numbers from a range of available game numbers for a lottery game. For example, the lottery game may have game numbers ranging from 1-100. The player may select a plurality of game numbers from the range of game numbers or predict an outcome of a sporting event using the input terminal 54 prior to the start of a sporting event or the drawing of a lottery game. The quantity of selected game numbers may be dependent on the amount of the wager and the particular lottery rules being used. In one example, the multi-player gaming controller 52 may randomly select the game numbers or sporting event outcome on behalf of the player. The selected game numbers or selected sporting event outcome may be printed on a ticket and dispensed by the input terminal 54, along with a ticket identification assigned by the multi-player gaming server 58 to identify the wager. In some cases, the player may place a wager with an attendant who would enter the player's gaming decisions (e.g., game numbers selections) into the input terminal, enter the wager and provide the player with a ticket. A card reader, similar to the card reader 64 described below, may be used to encode the player's registration, the wager, the player's gaming decisions and the ticket identification on a player identification device. The input terminal 54 may include a processor and a memory to compare the results of the multi-player game (e.g., the randomly selected numbers or the outcome of the sporting event) to the gaming decisions by the player and determine a payout.
The multi-player gaming display 56 may be used to display multi-player gaming information regarding the sporting event or lottery game being wagered on. For a sporting event, the multi-player gaming display 56 may include a video image of the status of the sporting event (e.g., a score) and the final outcome of the sporting event. The multi-player gaming display 56 may further include a real-time or near real-time video of the actual sporting event. For a lottery game, the multi-player gaming display 56 may include a video image of a plurality of game numbers in a grid pattern representing the range of game numbers for the lottery game. The multi-player gaming display 56 may further display the randomly-selected game numbers by highlighting the randomly-selected game numbers from among the range of game numbers or otherwise distinguish the randomly-selected numbers from the range of game numbers. For example, the randomly-selected game numbers 12, 36, 52, 58, 76, and 82 have been highlighted on the multi-player gaming display 56 to be distinguished from the remaining game numbers. The multi-player gaming display 56 may be located near an input terminal 54 and remotely from the gaming units 20, such as in a different floor, a different room, a different area of a room, a different casino, etc.
One manner in which one or more of the gaming units 20 (and one or more of the gaming units 30) may operate is described below in connection with a number of flowcharts which represent a number of portions or routines of one or more computer programs, which may be stored in one or more of the memories of the controller 100. The computer program(s) or portions thereof may be stored remotely, outside of the gaming unit 20, and may control the operation of the gaming unit 20 from a remote location. Such remote control may be facilitated with the use of a wireless connection, or by an Internet interface that connects the gaming unit 20 with a remote computer (such as one of the network computers 22, 32) having a memory in which the computer program portions are stored. Additionally, the computer program(s) or portions thereof may control the operation of the multi-player gaming server 58 and an input terminal 54 from a remote location such as the gaming unit 20, a kiosk 21 or handheld device 23. Such remote control may be facilitated with the use of a wireless connection, or my an Internet interface that connects the player tracking unit 26 a (or the player tracking units 26 b, 26 c) with the multi-player gaming server 58, the input terminal 54 or the multi-player gaming network 50 generally. The computer program portions may be written in any high level language such as C, C++, C#, Java or the like or any low-level assembly or machine language. By storing the computer program portions therein, various portions of the memories 102, 106 are physically and/or structurally configured in accordance with computer program instructions.
FIG. 7 is an exemplary display 350 that may be shown on the display unit 70 during performance of the video poker routine 210 shown schematically in FIG. 5. Referring to FIG. 7, the display 350 may include video images 352 of a plurality of playing cards representing the player's hand, such as five cards. To allow the player to control the play of the video poker game, a plurality of player-selectable buttons may be displayed. The buttons may include a “Hold” button 354 disposed directly below each of the playing card images 352, a “Cash Out” button 356, a “See Pays” button 358, a “Bet One Credit” button 360, a “Bet Max Credits” button 362, and a “Deal/Draw” button 364. The display 350 may also include an area 366 in which the number of remaining credits or value is displayed. If the display unit 70 is provided with a touch-sensitive screen, the buttons 354, 356, 358, 360, 362, 364 may form part of the video display 350. Alternatively, one or more of those buttons may be provided as part of a control panel that is provided separately from the display unit 70.
FIG. 11 is an exemplary display 450 that may be shown on the display unit 70 during performance of the slots routine 230 shown schematically in FIG. 5. Referring to FIG. 11, the display 450 may include video images 452 of a plurality of slot machine reels, each of the reels having a plurality of reel symbols 454 associated therewith. Although the display 450 shows five reel images 452, each of which may have three reel symbols 454 that are visible at a time, other reel configurations could be utilized.
FIG. 16 is a flowchart of the video bingo routine 250 shown schematically in FIG. 5. The bingo routine 250 may be utilized in connection with a single gaming unit 20 where a single player is playing a bingo game, or the bingo routine 250 may be utilized in connection with multiple gaming units 20 where multiple players are playing a single bingo game. In the latter case, one or more of the acts described below may be performed either by the controller 100 in each gaming unit 20 or by one of the network computers 22, 32 to which multiple gaming units 20 are operatively connected.
FIG. 17 is a flowchart of a player identification routine 205 shown schematically in FIG. 5 and may be used to determine whether to display the remote multi-player game and allow the player to control the remote multi-player game from the gaming unit 20. The following description of the player identification routine 205 may likewise be applied to the player identification routine 305 of FIG. 6. The player identification routine 205 may be stored in a memory of the controller 100 and executed by the player tracking unit 26 a. Referring to FIG. 17, the player identification routine 205 may begin operation at block 702 during which a player's identification may be validated. The player identification routine 205 may cause the player tracking unit 26 a to issue a request to the player tracking server 26 to compare the player's identification to a list of player identifications stored by the player tracking server 26. The player tracking server 26 may transmit a result to the player tracking unit 26 a as to whether the player identification matches one of those stored by the player tracking server 26. The player's identification may be encoded on a player identification device which may be in the form of a player tracking card such as a magnetic or optical card including credit cards or a card issued by a casino through a gaming unit 20, an input terminal, an attendant, etc. The player identification device may also be a radio-wave device such as a memory device coupled with a transceiver worn or carried by the player, or other wireless devices including cellular phones, personal digital assistants, etc. The player's identification may be the player identification as assigned by the player tracking server 26 which may be a unique alphanumeric code, a binary code, etc. The player identification may also be the player's name, credit card number, social security number, etc. The player identification may be read by the gaming unit 20 using an identification reader such as radio transceiver, optical transceiver, card reader 64, control panel 68, or any other device capable of reading player identification information encoded on the player identification device. The player may also enter the player identification using the control panel 68. If the player identification does not match one of those stored by the player tracking server 26, control may loop back to recheck the player identification or the player identification device may be rejected by the gaming unit 20. If the player identification is valid, control may pass to block 704.
If the player identification routine 205 determines that the player registered for a remote multi-player game either at block 704 or block 710, control may pass to a remote gaming routine at block 706 for display of the remote multi-player game and options for controlling regarding the remote multi-player game. Following the remote gaming routine 706, control may pass to block 712 for the card to be removed or the player may be allowed to continue with one of the gaming routines 210, 220, 230, 240, 250.
Once the multi-player gaming information has been retrieved and a link established to update the multi-player gaming information, control may pass to block 904 and a menu display may be generated on the display unit 70 to allow the player to select one of the remote multi-player gaming options being displayed. The menu display may include, for example, an option to play favorite gaming selections 908 (e.g., a player's favorite game numbers for a lottery), an option to download the player's credits from previous payouts 910, an option to place a new wager on a remote multi-player game or initiate a new remote multi-player game 912, view multi-player gaming information of an existing remote multi-player game in progress 914 or an option to exit the menu display 916. A selection of one of the menu options may be made by a player input at block 904 and detected at block 906 in various ways, including pressing any button on the gaming unit 20. Following the execution of any of the menu options at blocks 908, 910, 912, 914, control may pass back to block 904 to display the menu options again.
FIGS. 20 and 21 are exemplary displays 1000, 1100 that may be shown on the display unit 70 during performance of the remote gaming routine 706 shown schematically in FIG. 19. The displays 1000, 1100 may be generated on the display unit 70 in response to player selection of the option to view information regarding existing remote multi-player games in progress at block 912. Referring to FIG. 20, the display 1000 may include a video image 1002 of the remote multi-player game in progress. In the present example, the video image 1002 may be a video image of a remote multi-player lottery game in progress. As mentioned above, the video image 1002 of the remote multi-player lottery game may include the same information provided on the multi-player gaming display 56 regarding the existing remote multi-player game, such as the plurality of game numbers in a grid pattern and the randomly-selected game numbers. The randomly-selected game numbers may be highlighted to distinguish them from non-selected game numbers. For example, the randomly-selected game numbers 12, 36, 52, 58, 76, and 82 have been highlighted to be distinguished from the remaining game numbers. The video display 1002 may be updated as new randomly-selected game numbers are selected. Unlike the multi-player gaming display 56, the video image 1002 may include the player's gaming selections for the remote multi-player game. For example, the player selected game numbers 12, 24, 43, 52, 76, and 82 for a remote multi-player lottery game are highlighted or otherwise distinguished from both the randomly-selected game numbers and the remaining game numbers. If one or more of the player selected game numbers and the randomly-selected game numbers are the same, they may be highlighted separately to distinguish them from all remaining numbers. In the present example, the game numbers 12, 52, 76 and 82 have been highlighted to distinguish them from the remaining player selected game numbers, the remaining randomly-selected game numbers and the remaining game numbers. In the case of a sporting event, the team, player, etc. involved in the sporting event that the player wagered on may be highlighted from the remaining teams, players, etc. The specific team, player, etc. that the player wagered on may be highlighted to be distinguished from the remaining teams, players, etc. even further. In the case of wagering on a specific score, spread, etc., the score of the sporting event may be highlighted in a particular color or otherwise distinguished to indicate that the player's prediction of the score, spread, etc. as it stands will result in a payout. For example, if the player has wagered that a football game will have a spread of 6 points, if the current score is within 6 points, the video image of the score may be highlighted in a particular manner to indicate the same.
said second video image comprising an image of a sports score if said second game comprises said multi-player sports game.
2. A gaming apparatus as defined in claim 1, wherein said controller is programmed to allow said person to make said wager on at least one of said first game and said second game using said first value input device.
3. A gaming apparatus as defined in claim 1, wherein said controller is programmed to receive data representing a second value payout associated with an outcome of said second game, said second value payout data being determined by a multi-player gaming server of said one or more servers.
4. A gaming apparatus as defined in claim 1, wherein said first game is a single-player game.
5. A gaming apparatus as defined in claim 1, wherein said controller is programmed to receive identification information regarding said person, said controller being programmed to receive gaming information regarding said wager on said second game using said identification information, wherein said gaming information includes a gaming decision made by said person.
6. A gaming apparatus as defined in claim 1, wherein said second video image comprises an image of a gaming decision made by said person in relation to said second game.
7. A gaming system comprising a plurality of gaming apparatuses as defined in claim 1, said plurality of gaming apparatuses being interconnected to form a first network of said plurality of gaming apparatuses.
said multi-player gaming server being programmed to transfer gaming information regarding said second game to said controller, said gaming information including data representing said second value payout, and information regarding gaming decisions by said person for said second game.
said controller being programmed to cause a second video image to be generated on said display unit, said second video image representing a second game wagered on by said person at a second value input device located within a second geographic location other than within said first geographic location of said gaming apparatus, said second video image including content based on information regarding said second game received from one or more servers configured to transmit said information, said first video image and said second video image displayed concurrently on said display unit.
10. A gaming apparatus as defined in claim 9, wherein said controller is programmed to allow said person to make said wager on at least one of said first game and said second game using said first value input device.
11. A gaming apparatus as defined in claim 9, wherein said controller is programmed to receive data representing a second value payout associated with an outcome of said second game, said second value payout data being determined by a multi-player gaming server of said one or more servers.
12. A gaming apparatus as defined in claim 9, wherein said first game is a single-player game and said second game is a multi-player game.
said second video image comprising an image of a sports score if said second game comprises said multi-player sports gaming.
14. A gaming apparatus as defined in claim 9, wherein said controller is programmed to receive identification information regarding said person, and said controller being programmed receive gaming information regarding said wager on said second game using said identification information, wherein said gaming information includes a gaming decision made by said person.
15. A gaming apparatus as defined in claim 9, wherein said second video image comprises an image of a gaming decision made by said person in relation to said second game.
16. A gaming system comprising a plurality of gaming apparatuses as defined in claim 9, said plurality of gaming apparatuses being interconnected to form a first network of said plurality of gaming apparatuses.
18. A gaming system as defined in claim 17, wherein said plurality of gaming apparatuses are interconnected via the Internet.
Australian Examination Report dated Oct. 15, 2007 for corresponding Australian Patent Application No. 2004260994.
Australian Examination Report dated Sep. 25, 2008 for corresponding Australian Patent Application No. 2004260994.
Chinese Office Action dated Apr. 10, 2009 for corresponding Chinese Patent Application No. 200480023898.9, 4 pgs.
Chinese Office Action dated Sep. 4, 2009 for corresponding Chinese Patent Application No. 200480023898.9, 14 pgs.
Chinese Office Action dated Sep. 5, 2008 for corresponding Chinese Patent Application No. 200480023898.9.
Chinese Office Action mailed Apr. 22, 2010, from Application No. 200480023898.9.
Examination Report dated Feb. 7, 2008 for corresponding UK Patent Application No. GB0602499.6.
Examination Report dated Jan. 8, 2008 for corresponding UK Patent Application No. GB0602499.6.
Examination Report dated Jul. 6, 2007 for corresponding UK Patent Application No. GB0602499.6.
Examination Report dated May 16, 2006 for corresponding UK Patent Application No. GB0602499.6.
Examination Report dated Oct. 31, 2006 for corresponding UK Patent Application No. GB0602499.6.
International Preliminary Report on Patentability dated Jan. 30, 2006 for corresponding PCT Patent Application No. PCT/US2004/021906.
International Search Report and Written Opinion dated Nov. 22, 2004 for corresponding PCT Patent Application No. PCT/US2004/021906.
Office Action dated Apr. 16, 2007 for related U.S. Appl. No. 10/628,544.
Office Action dated Jun. 20, 2006 for related U.S. Appl. No. 10/628,544.

matches:
§ 112
Application No. 2004260994
Application No. 2004260994
Application No. 200480023898
Application No. 200480023898
Application No. 200480023898
Application No. 200480023898