Cairns Patent Once Again Provokes The Promotions Industry To Re-Evaluate Online Promotional Games
Most major players in the promotions industry know that the so-called Cairns patent (U.S. Patent No. 6,173,267) is an online business method patent relating to online sweepstakes that involve unique codes. Although it should be clearly understood that I am not a patent attorney (a highly-technical legal specialty), and this blog entry does not constitute legal advice and most certainly does not constitute a legal opinion of this firm, there are several steps that can be taken to potentially avoid at least one of the elements, or its equivalent, for each claim of the patent.
Based on the Abstract and specifications of the Cairns patent and a summary of its various claims, the Cairns patent involves a series of steps whereby: (1) a person obtains a "unique code" from packaging or point of sale materials or through some other form of "card" (in whatever form) and is directed by such packaging, materials or "card" to visit a particular online website (the "Specified Website") for the chance to win a prize; (2) the person then takes that code and uses a computer or other device to connect to the Internet and visit the Specified Website; (3) at the Specified Website, the person enters some amount of personal information (e.g., name, address, phone number) that will allow the promotion sponsor to contact him or her; (4) at the Specified Website, the person also enters the "unique code", which can happen either before or after the personal information is entered; (5) after the "unique code" is entered, some calculation is made on the code (e.g., "the code is compared to a list of winning codes to determine whether that code is a winner at some prize level…. Alternatively, the code which is input by the purchaser may be subject to some computation, random selection, or other means for determining a winning or non-winning status, instead of the look-up list. The purchaser is then informed of his or her status based on the code, in other words, whether the purchaser has won some prize…."; and finally (6) each person who is identified as winning a prize "based on said unique code" is informed that he or she has won a prize "while [he or she] is connected [to the Specified Website]".
Additionally, if users enter their personal information at the Specified Website (e.g., a registration URL) and are then taken to a different URL for purposes of entering the code and playing the game, the mechanic would involve two websites, not just the Specified Website contemplated in the Cairns patent. To further distance a promotional game from the Cairns patent claims, it is often useful to make a clear distinction in the game mechanic between entering the code and announcing that a participant has won, such as some sort of intervening act coupled with an email intercept whereby a participant is informed through an after-the-fact email that he or she has won something (e.g., "check your email to see if you've won") as opposed to being instantaneously informed while he or she is still logged on to the Specified Website.
Of course, there may be online business method patents other than the Cairns patent that are implicated by a particular promotion. But based on the above analysis, there are several steps that can be taken to potentially avoid several of the Cairns patent claims.