For the first time since 2009, new patent lawsuit filings declined in 2014 from the previous year. Lawsuits dropped by 13 percent, a significant shift from the numbers of cases over the previous five years, caused in part by the U.S. Supreme Court's landmark Alice ruling, according to a new study released Wednesday by PricewaterhouseCoopers.

In addition, the U.S. Supreme Court has quietly adopted a rule that will increase pleading standards for filing patent lawsuits. In an order in late April, the high court without comment adopted changes to the Federal Rules of Civil Procedure that were approved in September by the Judicial Conference of the U.S. and will take effect Dec. 1. unless they are modified by Congress, which is considering bills that would raise patent pleading standards even beyond what the new rule requires.

The rule changes cover several areas, but one is of particular concern in patent litigation: the abolition of Rule 84, which provides model forms that attorneys can rely on in several situations, including Form 18, a model patent complaint.

On Form 18, a plaintiff is required to include include little more in a patent complaint than the name and number of the patent and an allegation of infringement. The Judicial Conference said that such model complaints are outdated.
The elimination of Form 18 would just subject patent complaints to the pleading standards established by the Supreme Court in its landmark Twombly and Iqbal decisions, which require plaintiffs demonstrate that their claims are plausible, rather than simply putting the defendant on notice of the claim.

More on the topics over at

U.S. Patent No. 6,923,722: Game system and game program for providing multi-player gameplay on individual displays and a common display
Issued August 2, 2005, to Nintendo Co., Ltd.


The ‘722 patent will appeal to all those who love playing multi-player games. It involves a game system that provides individualized maps for each of the different players of a game. For example, if player number one is on the first floor, his map will reflect that while player two on the second floor will have the second floor map. The two maps contain at least one connection point whereby players can switch floors and maps. Whenever one of the players is located in the area of the other player, they will appear on a sub-map. This allows players to find each other or enemies with greater ease.


A game system with a high entertainment value, in which a plurality of player character are played by a plurality of players, and a game program for such a game system are provided. A plurality of individual displays provided to players and a common display commonly provided to all players are provided. Each player character is moved between a first game map and a second game map upon satisfaction of a predetermined condition. A player character located on the first game map and at least a part of the first game map are displayed on the common display. A player character located on the second game map and at least a part of the second game map are displayed on an individual display provided to a player operating that player character.

Illustrative Claim:

1. A game system to be played by a plurality of players, the game system including a plurality of operating mechanisms provided to the players, a plurality of individual displays provided to the players, and a common display commonly provided to the players, wherein a plurality of player characters appearing on game maps are controlled by each corresponding player operating each corresponding operating mechanism, the game system comprising: first game map data storage locations which store data for displaying a first game map; second game map data storage locations which store data for displaying at least one second game map; an inter-game-map movement control processing mechanism which moves the player characters individually between the first game map and the second game map upon satisfaction of a predetermined condition; common display control processing mechanism which displays player characters located on the first game map and at least a part of the first game map on the common display; and individual display control processing mechanism which displays a player character located on the second game map and at least a part of the second game map on an individual display provided to a player operating the player character located on the second game map.

In a second major case decided today, the 9th Circuit held that there is no independent copyright held by a performer in a motion picture (film, TV, etc.) work.

As reported by Law360, in an en banc decision the full Ninth Circuit on Monday overturned a highly-controversial panel decision that forced Google Inc. to pull an anti-Islam video from YouTube, calling it a ‘dubious’ copyright ruling that gave short shrift to the First Amendment.

The appeals court’s reversal came in the closely-watched case of Cindy Lee Garcia, an actress who sued Google after receiving death threats based on her role in the incendiary “Innocence of Muslims” — the same film that allegedly sparked riots in the Middle East in 2012.

“[Plaintiff's] theory … would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act,” the court wrote. “Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.”

This is a good day for copyright law.  A decision the other way would have sent Hollywood into disarray and turned the film industry on its head, creating a new threat that countless actors could hold copyright owners hostage for vast sums of unpaid royalties.  This case is also important for video game developers who have hired actors as part of the creation process.

Despite the negative impact the opposite decision could have had, that's not WHY this is a good decision.  Rather, a movie, television show, video game, or any other audiovisual work is ultimately the vision a single person (e.g., the director) or entity (e.g., the video game developer or publisher).  Allowing actors a copyright right in their individual performances would, by implication, mean that the director does not actually have ultimate control to decide what is and is not included within a film or video game.  But that's the not the reality.  The reality is that the director, if she doesn't like the actor's performance, requires the actor to reshoot the scene until the actor's performance is what the director wants the performance to be.  Today's case reaffirms that principle.
May 18, 2015: Today the Federal Circuit decided the appeal in the first Apple v. Samsung case, upholding a majority of Apple's damages award, namely, damages attributable to patent infringement.  However, the court reversed the damages attributable to trade dress protection, ultimately finding that Apple's uregistered trade dress in its older iPhones was functional and therefore not protectable under trade dress law:
Apple has failed to show that there was substantial evidence in the record to support a jury finding in favor of non-functionality for the unregistered trade dress on any of the [required] factors. Apple fails to rebut the evidence that the elements in the unregistered trade dress serve the functional purpose of improving usability. Rather, Apple focuses on the “beauty” of its design, even though Apple pursued both “beauty” and functionality in the design of the iPhone. We therefore reverse the district court’s denial of Samsung’s motion for judgment as a matter of law that the unregistered trade dress is functional and therefore not protectable.
On the up side, the Federal Circuit's decision is a strong win for patent rights, and design patent rights in particular.  

What's the relevance to video and computer games?  Consider this.  Video game designers often rely on trade dress to protect the look and feel of the game as a brand or source indicator, in addition to relying on copyright protection.  However, to the extent the trade dress is essential to the use or purpose of the video game or it affects the cost or quality of the video game, then a court could ultimately find that the trade dress is functional and therefore not protectable.  The result?  In order to ensure that you are fully protecting your computer game, design patents for important user interface features should not be overlooked.

The case is Apple Inc. v. Samsung Electronics Co. Ltd. et al, Case 14-1335, Fed. Cir. May 18, 2015.  Read the full decision here.

U.S. Patent No. 6,955,605: Episodic delivery of content
Issued October 18, 2005, to Electronic Arts Inc.


The ‘605 patent describes a method of episodically delivering entertainment content for a reality-based game to a plurality of users. An initial episodic game module is delivered, then subsequent episodic game modules are delivered at periodically scheduled intervals. The players can have the new content sent to them via email, or they may be given a website which will house the new content to be downloaded. Once downloaded, the player will be free to play the new episode just like they had the previous content.


A system, method, and apparatus are provided that allow episodic delivery of entertainment content to a user. More specifically, an application module is created with episodic content technology, which can be purchased as a CD-ROM or downloaded from a remote server. The application module contains a current episode of the game and a technology shell to allow future episodes to be downloaded and executed. The entertainment content delivery system is implemented through a centralized server that provides new episodes of the content available for downloading at regularly scheduled intervals to the users' computers. The current instantiation of the application module segregates technology components from content components of the application module to allow independent modification of either. Technological advancements are incorporated as they occur into the new episodes and are executed by the application module. An Internet-enabled game using the entertainment content delivery system communicates with users through various mechanisms, including e-mail, voice mail, fax machines, web sites, and the like.

Illustrative Claims:

1. A method of episodically delivering entertainment content for a reality-based game to a plurality of users, the method comprising: delivering an initial episodic game module to a plurality of user computers using a first transport mechanism, wherein the initial episodic game module comprises an initial set of technology for enabling an initial episode of content on a user computer; and delivering subsequent episodic game modules at periodically scheduled intervals to at least one user, wherein each subsequent episodic game module includes a content component, and wherein the content component of at least one of the subsequent episodic game modules comprises one of a clue or a task to be completed by the user and is delivered to the at least one user using a second transport mechanism different from the first transport mechanism.

17. A method of episodically delivering entertainment content to a plurality of users comprising: delivering an initial episode of content, wherein the initial episode comprises an initial set of technology for enabling an initial episode of content; delivering subsequent episodes at periodically scheduled intervals to at least one user; identifying a relevant current event news story; creating a false news story related to the identified news story, wherein the false news story links the content of the episode to the identified news story; and transmitting information regarding the current event news story to at least one user to provide additional information related to the episode content.

19. A method of episodically delivering entertainment content to a plurality of users comprising: delivering an initial episode of content, wherein the initial episode comprises an initial set of technology for enabling an initial episode of content; delivering subsequent episodes at periodically scheduled intervals to at least one user, wherein an episode requires a video file to be played by a user; and incrementally delivering data comprising the video file as part of a plurality of episodes to a user.

We get asked... often... what sorts of names are best for your video game.  This post isn't a treatise on how to name your video game.  This post is a poster child for what NOT to name a product.  Never go with a generic or descriptive name.  Despite use of the word "brand" on the box, these guys chose a very BAD name:

U.S. Patent No. 6,843,726: Game system
Issued Jan. 18, 2005, to Konami


The ‘726 patent describes a game system in which a player uses a voice input device (ex. a microphone) to give commands which are followed on the screen. The user gives vocal commands based on text which appears on the screen. Once the command is spoken the digital character acts out the player’s command. Another aspect of the invention is that the player can receive instructions or commands from the game in which he must control his character to obey. Thus, the microphone acts as both a way to communicate actions to the character on the screen as well as a way to act out the commands he is given.


A game system is provided with a converting means including a voice input member, such as a microphone, for allowing the game player or his/her friend to input voices and for converting the inputted voices into electrical signal data, a sound data storage for storing the electrical signal data obtained by the conversion together with predetermined sound-relating data corresponding to contents of instructions, a sound generator for generating voices from the corresponding electrical signal data when a game player makes a motion in response to the content of instruction, and a device for evaluating a game result based on the content of instruction. Accordingly, a sound output type game system which can provide more interesting and enjoyable games can be realized.

Illustrative Claim:

1. A game system in which a game player makes motions in response to contents of instructions displayed on a display screen, the game system generating predetermined sounds corresponding to the contents of instructions, the game system comprising: voice converting means having a voice input member for inputting voices of the game player in association with a game and for converting the voices input through the voice input member into electrical signal data; storage means for storing the electrical signal data obtained by the voice converting means together with predetermined sound-relating data corresponding to the contents of instructions; motion detecting means for detecting at least one of a hitting motion and a swinging motion of the game player; and sound generating means for generating reproduced voices from the corresponding electrical signal data corresponding to the voices of the game player previously inputted by the game player based on either of the hitting and swinging motions of the game player corresponding to the contents of instructions when the game player makes the motions in response to the contents of instructions.

I can't tell you how many times I've been asked by a client or potential client whether they can include Element X from someone else's game in their own game.  It's a very difficult question to answer.  And no, I still don't have a black box that spits out the correct answer, because there is no such thing.  However, the U.S. Copyright Office today launched its Fair Use Index.  The index is searchable by court/jurisdiction and categories of copyrighted works (e.g., computer programs, music, parody/satire, etc.), and also includes whether or not fair use was found, not found, or mixed ruling.  While this still won't provide a 100% foolproof answer in any given situation, it is certainly a nice resource to see how courts have treated similar subject matter in the past.

The full press release from the U.S. Copyright Office is below:

April 28, 2015

U.S. Copyright Office Publishes Index of Fair Use Decisions in Support of U.S. Intellectual Property Enforcement Coordinator
Register of Copyrights Maria A. Pallante today announced the launch of the U.S. Copyright Office's Fair Use Index, which is designed to provide the public with searchable summaries of major fair use decisions. The Index was undertaken in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement prepared by the U.S. Intellectual Property Enforcement Coordinator within the Executive Office of the President.

Although not a substitute for legal advice, the Index is searchable by court and subject matter and provides a helpful starting point for those wishing to better understand how the federal courts have applied the fair use doctrine to particular categories of works or types of use, for example, music, internet/digitization, or parody.

“The doctrine of fair use has been an essential aspect of our copyright law for nearly 175 years,” said Pallante, “but it has too often been a mystery to good-faith users who seek more detail about its application. It has been a pleasure coordinating this practical and important resource with the U.S. Intellectual Property Coordinator’s office.”

“The doctrine of fair use is a vital aspect of U.S. copyright law,” said Danny Marti, the U.S. Intellectual Property Enforcement Coordinator at the White House, “and it is applied regularly in our daily life. I commend Register Pallante and the Copyright Office for producing this important resource—a resource that not only helps to make the doctrine more accessible, but also serves to re-emphasize the significance of this right as part of our culture. Indeed, it is the combination of a strong copyright system with a right of fair use that encourages creativity, promotes innovation and respects our freedom of speech and expression.”

The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, Internet/digitization, parody).

The Fair Use Index may be accessed on the Copyright Office’s website at or via the U.S. Intellectual Property Enforcement Coordinator’s website at

U.S. Patent No. 6,935,959: Use of multiple player real-time voice communications on a gaming device
Issued on Aug. 30, 2005, to Microsoft


The ‘959 patent describes a game console capable of communicating with other game consoles over a network connection. Players on the consoles have the ability to communicate with each other if they purchase a headphone and microphone set. Players also have the ability to mute others during the game.


A game console capable of communicating with other game consoles over a link or network is provided with a headphone and microphone for each player who will engage in voice communication. Verbal communications directed to one or more other players are converted to pulse code modulated (PCM) digital data and are encoded and compressed in real-time, producing data packets that are transmitted to another game console. The compressed data packets are decompressed and decoded, producing PCM data that are converted to an analog signal that drives a headphone of the intended recipient. Players can selectively mute voice communications to and from a specific other player. The PCM data can be encoded in a round-robin fashion that reduces the number of encoders required. A predefined level of computing resources is used for voice communication to avoid aversely affecting the quality of game play.

Illustrative Claim:

1. For use with an electronic game played on at least one multiplayer game console, a method for enabling players to verbally communicate in real-time while playing the game, comprising the steps of: (a) providing an audio sensor for at least one player who is using the multiplayer game console, said audio sensor producing an input signal to the game console in response to sound produced by said at least one player; (b) providing at least one sound transducer that is adapted to produce sound audible to another player of the game in response to an output signal; (c) encoding the input signal from the audio sensor to produce an encoded digital signal; (d) conveying the encoded digital signal through a voice channel associated with said other player; (e) decoding the encoded signal in the channel of the other player, to produce the output signal; and (f) providing the output signal to the sound transducer to produce an audible sound corresponding to the sound produced by said one player, so that a verbal communication by said one player is heard by said other player of the game.

Today Google announced a new initiative to try and keep patents out of the hands of patent trolls, entities whose only business is amassing intellectual property and filing lawsuits. Google is calling this new effort the Patent Purchase Promotion. Google is basically asking patent owners to trust them. The company has pledged in the past to only use its patents defensively, suing only if someone sues it first. Of course, a company's stance on patents can shift over time as it moves from young disrupters to entrenched incumbents. 2015 could also be the year Congress takes action. Or not, knowing Congress.

Like many things Google does, this project is a sort of open beta. "We view this as an experiment," Google wrote in the program's FAQ. "We are looking for ways to help improve the patent landscape, and we hope that by removing some of the friction that exists in the secondary market for patents, this program might yield better, more immediate results for patent owners versus partnering with non­-practicing entities."

An experiment indeed. More info over at The Verge. Needless to say, if you are a small entity that has one or two patents and you're looking for some quick revenue, this may be a good way to go. This is especially true if you want to ensure that your patents don't end up in the hands of patent trolls non-practicing entities. However, only time will tell how Google uses the patents in the future.

Here is the Announcement.
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