Cranway v Playtech Ltd and Others

JurisdictionEngland & Wales
JudgeMR. JUSTICE LEWISON
Judgment Date07 July 2009
Neutral Citation[2009] EWHC 101 (Pat),[2009] EWHC 1588 (Pat),[2007] EWHC 182 (Pat)
Docket NumberCase No: HC 2006 C03416,Case No: HC07C03466
CourtChancery Division (Patents Court)
Date07 July 2009

[2007] EWHC 182 (Pat)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

PATENTS COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Mr. Justice Lewison

Case No: HC 2006 C03416

Between
Cranway Limited (An Isle of Man Company)
Claimant
and
(1) Playtech Limited (A Bvi Company)
(2) Horserace Totalisator Board (A Public Corporation)
Defendants

Mr. Brian Nicholson (instructed by Herbert Smith LLP) appeared for the Claimant.

Mr. Adrian Speck (instructed by Linklaters) appeared for the Defendants

MR. JUSTICE LEWISON
1

Cranway Limited is the proprietor of a patent relating to computer gaming. The field of the invention is described in paragraph 1 of the patent in the following terms:

“This invention relates to an interactive, real time, realistic ‘home’ computer gaming system using general purpose computers. The system comprises a central or host computer, a plurality of terminal computers forming player stations remote from the host, communicating means for connecting each of the terminals to the host, and program means for operating the computers and the communication between the terminals and host. Aspects of the invention concern auditing and security to ensure fairness for players and prevent players defeating the outcome of a game; fast, efficient communication to enable reliable, low cost, real time, realistic operation; accounting; and enabling players to play a variety of games.”

2

The scope of the monopoly claimed by the patent is set out in claim 1. Leaving out the various numerals to identify particular elements, what is claimed is as follows:

“A gaming system for playing an interactive casino game, comprising a host computer, at least one terminal computer forming a player station, communication means for connecting the terminal computer to the host computer, and program means for operating the terminal computer, the host computer and the communication means wherein:

a. the terminal computer has a processor and connected to the processor a video display unit and a data entry means;

b. the terminal computer has terminal program means for:

—establishing a secure communication with the host computer;

—generating simulation output appropriate to a game including an account status of a player playing the game; and

—generating a terminal data packet representative of a valid user response generated by activation of the data entry means, and sending the data packet to the host computer;

c. The host computer has program means for

—generating a random number for a game being played on a terminal computer within preset criteria for that game in response to a valid terminal data packet received from said computer terminal; and

—storing an account status for a player playing the game;

characterised in that:

—the terminal computer is sited at a location remote from the host computer;

—the communication means is operable to connect the terminal computer to the host computer via a public telecommunication link;

—the host computer has program means for generating host control data packets for controlling the simulation output of the terminal computer;

—processing is distributed between the host computer and the terminal computer such that a game result and an account status are processed at the host computer and the simulation output is processed at the terminal computer so that only the minimum relevant information is transmitted between the host and terminal computers; and

—the simulation output is generated in response to host control data packets received by the terminal computer from the host computer”.

3

The original inventor and original proprietor of the patent is Dr. Julian Menashe. While Dr. Menashe was the proprietor of the patent there was litigation which went to the Court of Appeal, to which I will refer in due course. Cranway Limited is now the proprietor of the patent and claims that the patent has been infringed. The claim is made against Playtech Limited, a company incorporated in the British Virgin Islands, and the Horserace Totalisator Board, commonly known as the Tote, which is a public corporation.

4

On 3 rd August 2006 Master Bowles made an order permitting Playtech Limited to be served outside the jurisdiction. Playtech has now applied to set aside that order for service outside the jurisdiction and the Tote has applied to strike out the particulars of claim on the ground that they do not disclose a cause of action with a reasonable prospect of success.

5

One of the peculiarities of the claim in the present case is that both the Tote and Playtech are alleged to be legally responsible for a number of other entities which are either subsidiaries of the defendant in question or, in the case of Playtech, what are called “affiliates”. I will deal with those matters later.

6

The claim for infringement is dealt with, so far as Playtech is concerned, in paragraph 8 of the particulars of claim. Infringement is described in section 60 of the Patents Act 1977 in the following terms. Subsection (1) provides, so far as is material:

“Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say—(a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise”.

7

Subsection (2) provides, so far as is material:

“Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.”

8

Paragraph 8 of the particulars of claim alleges that Playtech has carried out certain acts in the United Kingdom without the consent of the claimant. Those acts are particularised in the following terms:

“(1) making, disposing of, offering to dispose of, using, importing and keeping for disposal or otherwise, systems for playing interactive casino games within the meaning of the claims of the Patent and each of those claims (‘the Playtech Gaming Systems’). (a) The Playtech Gaming Systems include computer systems specifically adapted by the installation and configuration of Playtech's software including, inter alia, Playtech's Client Facing, Server Side, Front End and Back End software, and its Universal Gaming Platform (together ‘the Playtech Software’). (b) Pending disclosure and requests for further information, the Claimant relies upon the provision of the Playtech Gaming Systems to the Tote (as defined below).”

9

The opening rubric of those particulars of infringement simply follow the words of section 60(1) without any real attempt to analyse or identify what parts of section 60 are in fact relied on. The only act which is pleaded is the provision of the Playtech Gaming Systems to the Tote, but even the Playtech Gaming Systems, spelt as they are with capital letters, are not really identified except in so far as they are said to be systems for supplying interactive games within the meaning of the claims. So the identification of what is actually complained of is dealt with only in the most vague and general terms.

10

Paragraph 8(2) of the particulars of claim says this:

“further and in the alternative, the supply and offer to supply of the Playtech Software and/or constituent parts thereof, each such part being mean relating to an essential element of the invention for putting the invention of the Patent into effect when Playtech knew and/pr it was obvious to a reasonable person in the circumstances that those means are and were suitable for putting, and are and were intended to put, the invention of the Patent into effect in the United Kingdom.”

11

Again, that tracks very closely the words of the statute itself. The act which is pleaded is the supply and offer to supply either ‘the Playtech Software’ or constituent parts of it.

12

The general requirements for pleadings are set out in Part 16.4 of the Civil Procedure Rules. Those require that particulars of claim must include “a concise statement of the facts on which the claimant relies”. What are to be pleaded are facts, not legal conclusions.

13

In NEC Semi-Conductors Limited v. The Commissioners for Her Majesty's Revenue and Customs [2006] ECWA Civ 25, Mummery LJ said this:

“While it is good sense not to be pernickety about pleadings, the basic requirement that material facts should be pleaded is there for a good reason—so that the other side can respond to the pleaded case by way of admission or denial of facts, thereby defining the issues for decision for the benefit of the parties and the court. Proper pleading of the material facts is essential for the orderly progress of the case and for its sound determination. The definition of the issues has an impact on such important matters as disclosure of relevant documents and the relevant oral evidence to be adduced at trial. In my view, the fact that the nature of the grievance may be obvious to the respondent or that the respondent can ask for further information to be supplied by the claimant are not normally valid excuses for a claimant's failure to formulate and serve a properly...

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    ...cause of action without supporting evidence, and merely doing so will not raise a serious issue to be tried: Cranway Ltd v. Playtech Ltd [2007] R.P.C. 22. If a statement of claim has been prepared it is not necessary to reproduce it in the affidavit and a reference to it together with the s......
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    ...cause of action without supporting evidence, and merely doing so will not raise a serious issue to be tried: Cranway Ltd v. Playtech Ltd [2007] R.P.C. 22. If a statement of claim has been prepared it is not necessary to reproduce it in the affidavit and a reference to it together with the s......
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1 firm's commentaries
  • What Constitutes Contributory Infringement of a Patent in the United Kingdom?
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    • Mondaq United Kingdom
    • 31 December 2010
    ...specific must the intention be? When must the intention be formed? It was thought clear that, as per Lewison J in Cranway v Playtech [2009] EWHC 1588 (Pat); [2010] FSR 2, the relevant intention must be that of the person However, the court rejected the view, also expressed in Cranway, that ......

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