BYI v. IGT: IGT Moves for Summary Judgment

Implications: IGT just filed for summary judgment in one of its patent disputes involving rival BYI.  The motion is clever, but I suspect that it will fail, because IGT's motion requires the court to skip several analytical steps that the court should not be willing to skip.

Analysis: There are three main patent disputes underway between IGT and BYI.  The main one is a case where IGT is on offense, bringing to bear two families of patents: wheel-based bonus games, and player tracking.  A secondary case, however, is Bally's case where it is asserting its own patent on wheel-based gaming against IGT.

In that case, IGT just filed a motion for summary judgment, alleging that the Bally patent is invalid because a look-alike game was on the market more than one year prior to Bally's filing date.  IGT's motion is clever because it is premature; the court has yet to hold a Markman hearing (where it interprets the patent) and that typically is a necessary step prior to evaluating a motion like IGT's.

What is IGT thinking?  Cleverly, they argue that, even if Bally's interpretation of the patent wins in the Markman, the patent is no good.  That is, they invite the court to assume for the purposes of the motion that Bally wins the Markman hands down.  Even then, says IGT, the patent is no good.

I love the idea, but I don't think it will work.  The reason is that IGT's argument is not exactly the one it needs.  IGT would be right to move for summary judgment now if it could say that, no matter who wins at the Markman, the patent is invalid.  That would in essence point out that the Markman is irrelevant to the motion, so why wiat. 

IGT does not say that, however.  IGT instead says that the patent is no good assuming Bally wins the Markman, but presumably that argument doesn't fly if IGT wins.  Knowing that, the court cannot skip the Markman, but has to actually first decide the Markman before knowing how to approach the motion.

One caveat: I fear that Bally's legal filings don't really make this point well enough.  If the judge misses it, and thinks that IGT made the latter argument instead of the former, then the court might indeed jump ahead and consider the IGT motion too early.  That would be bad for BYI, because it would give IGT a free second shot at the patent: the early shot using BYI's interpretation, and then a second shot using the court's interpretation after the Markman.