Planet Bingo v. Gametech (Fed. Cir. 2006).
Planet Bingo is the exclusive licensee of two patents covering a way to play bingo. This game combines the numbers with an indicator (such as the color red) to give enhanced awards. The patent claims a “predetermined” winning combination, and that is where the dispute lies.
In the accused game of “rainbow bingo,” the color of the first ball chosen serves as the indicator. Since that color is not known before the game begins, the court found it was not “predetermined.” as required by the claims.
Planet Bingo, however, asserted infringement under the DOE. Although the defendant’s indicator color is not known before the game begins, it is known immediately after the first bingo ball is drawn — something that is equivalent. The CAFC disagreed, finding that under Warner-Jenkinson, a color that is “predetermined” cannot, as a matter of law, be equivalent to a color that is selected immediately after the game starts.
Here, the court focused particular attention on foreseeability of the asserted equivalent — apparently assuming that most variations in the bingo-arts would be foreseeable.