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Lottotron, Inc v. Eh New Ventures Inc.

February 23, 2011

LOTTOTRON, INC.,
PLAINTIFF,
v.
EH NEW VENTURES INC., ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Hochberg, District Judge:

NOT FOR PUBLICATION

ORDER & OPINION

This matter comes before the Court on the various pre-trial motions filed by Plaintiff Lottotron, Inc. and Defendant Interactive Systems Inc. ("ISI"). The Court has reviewed the parties' submissions pursuant to Fed. R. Civ. P. 78.

BACKGROUND

Plaintiff Lottotron, Inc. is the owner by assignment of U.S. Patent No. 5,921,865, entitled "Computerized Lottery Wagering System" (the "'865 Patent").

The method patented in the '865 Patent "enables a subscriber to place lottery wagers through a telecommunication means, such as a telephone, in one or more available lotteries." Lottotron, Inc. v. GTECH Corp., No. 05-4562 (FLW), 2007 U.S. Dist. LEXIS 82579, at *2 (D.N.J. Nov. 7, 2007). Using the patented method "an individual accesses the system remotely to enroll with the system by setting up an account and establishing a credit balance for wagering, then selects a lottery game to play, and finally places a lottery wager for the selected game using the balance." Id. at *2-3.

Defendant Interactive Systems Inc. ("ISI") operates www.sportsbetting.com, a website that offers online gambling, including a wide variety of casino games.

Lottotron brings a claim for patent infringement against ISI, alleging that ISI infringes on the '865 Patent by offering a "multiple game, on-line wagering format."*fn1 (Cmplt. ¶ 22) ISI asserts a counterclaim seeking declaratory judgment that ISI did not infringe on the '865 Patent. On November 15, 2010, we granted ISI's motion for summary judgment in part and denied it in part, finding that ISI had not literally infringed on Lottotron's patent but that issues of fact remained as to infringement under the doctrine of equivalents.

At the close of oral argument on the Motion for Summary Judgment filed by ISI, the parties entered into a stipulation on the record as to a number of the issues remaining in the case.*fn2

On November 17, 2010, they filed a written stipulation memorializing their earlier agreement. The stipulation make the following provisions:

1. Lottotron and ISI stipulate that the "wagering formats" limitation of the asserted claims of the patent in suit means "the kind of lottery games that are available, such as Keno, Lotto, and 3- or 4- digit lotteries."

2. The parties' agreement regarding the binding nature of the earlier construction of "wagering formats" renders ISI's affirmative defense of collateral estoppel moot.

3. The parties shall revisit ISI's affirmative defense of prosecution history estoppel once the Court issues its decision on ISI's motion for summary judgment of non-infringement, and ISI reserves its rights to assert same pending the ruling.

4. ISI maintains its affirmative defense and counterclaim of non-infringement. ISI stipulates that the accused www.sportsbetting.com website satisfies all of the limitations of the asserted claims of the patent in suit except: 1) the terms "lottery format," "lottery game format," "lottery game," "lottery ticket," and "lottery" as used in the '865 patent are not the equivalent of the ISI Games; and 2) the ISI Games do not satisfy the "wagering formats" limitation of the asserted claims because they are not "the kind of lottery games that are available, such as Keno, Lotto, and 3- or 4- digit lotteries." Accordingly, the parties stipulate that the only remaining issue to be tried is whether the ISI Games offered on the accused Sportsbetting.com satisfy the "wagering formats" limitation of the asserted claims, construed as "the kind of lottery games that are available, such as Keno, Lotto, and 3- or 4- digit lotteries."

4. ISI hereby withdraws all of its other affirmative defenses and counterclaims.

(Dkt. No. 98)

On November 15, 2010, this Court issued an Order & Opinion granting ISI's motion for summary judgment of literal non-infringement of the '865 Patent and denying the motion as to infringement under the doctrine of equivalents. (Dkt. No. 96)

In anticipation of trial, the parties have filed seven pre-trial motions, as set forth in further detail below. This case will proceed to trial on March 14, 2011.

DISCUSSION

I. MOTIONS TO EXCLUDE EXPERT ...


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