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If you've ever been to Queen Mary's excellent More than Just a Game events, you have probably heard of the new Interactive Entertainment Law Review journal launched by Profs. Dimita, Mimler, and Festinger. This new peer-reviewed journal offers analysis of legal issues arising from interactive entertainment, video games, virtual/augmented/mixed realities, social media, and all related and emergent forms of digital interactive entertainment. Ross and I serve as members of the Editorial Board, along with many others who are well-known in the video game legal community.

The first issue went live just the other day and we are very happy to report that it includes our new article on copyright issues raised by game input streaming and replays, titled "The Key to Key Presses: eSports Game Input Streaming and Copyright Protection."  In the article, Kirk and I explore whether and how copyright protection applies to recorded game inputs (e.g. mouse clicks and key presses in replay files), and who owns the copyright in recorded game play.  Here's the full abstract:
The eSports industry has exploded, in no small part due to the ease with which exciting matches may be watched. Many modern video games stream game user inputs to viewers, rather than bandwidth-intensive video. These game input streams can be used by the viewers’ game clients to perfectly reproduce a match in real-time. In World Chess U.S. v. Chessgames Services, a U.S. District Court held that allegedly pilfered chess game moves, as facts, were neither subject to copyright protection nor eligible for ‘hot news’ misappropriation. But might video game input streams (as facts, per the World Chess court) nonetheless be eligible for copyright protection to the extent that the input data corresponds to a copyright-eligible game performance? After all, input streams are significantly more granular and exacting than mere chess game moves: they capture millisecond-by-millisecond input and effectuate perfect reproducibility of gameplay, rather than a mere description thereof. This article explores the copyright issues under U.S. law presented by live streaming of video game inputs and proposes that video game input streams are, to the extent that they are usable to perfectly generate a faithful recreation of a gameplay performance, copyright-eligible and owned by the player of the game.
While these base-line rights are usually overruled by developer EULAs, the question of copyright ownership in replays may be particularly important in disputes between third party leagues.  In the past year, we've seen hints of this issue beginning to flare up in the form of the ESL/Valve/Twitch controversy back in January.  Allowing third party leagues to exercise copyright over their tournament game play (through agreement with the players) may foster further growth in the eSports community.

Check out the journal here and our full article here (free access).
Groove Digital, Inc. v. King.com, LTD. et al.,
United States District Court for the District of Delaware,
1-18-cv-00836, filed 06/04/2018
 
 
On June 4, 2018, Groove Digital filed a lawsuit in the District Court of Delaware alleging King.com infringed upon U.S. Pat. No. 9,454,762 (the '762 Patent), titled "System and Method for Delivery of Content to a Network Device." Groove Digital claims the '762 Patent relates to push notifications for mobile apps. In the Complaint, King's game, Candy Crush Saga, infringes upon the '762 Patent.

Claim 1 of the '762 Patent reads:
A system for delivering information to a networked device of a user, the system comprising:

a microprocessor running a software application for delivering an applet application to the networked device and managing the delivery of the applet application to the networked device, wherein the applet application passively deploys one or more applets at a time of deployment,

wherein the applet application provides for delivery of content to the networked device and a display of the content in a predetermined portion of a user display that is less than an entire display of the networked device, by the one or more applet, wherein the one or more applet is configured to deploy at least one of independent of or in conjunction with an internet browser window, wherein an internet browser is configured to deploy subsequent to deployment of the one or more applets based on at least one action or inaction of the user, wherein at least one of the applets is configured to become idle upon deployment of the internet browser, and wherein the deployment of the one or more applets is such that at the time of deployment of the one or more applets the user can continue to operate the networked device in a state prior to the deployment of the one or more applets;

a first database coupled to the microprocessor and storing a first set of information relating to the user; and

a second database coupled to the microprocessor and including a second set of information for comparison to the first set of information,

wherein the microprocessor compares the first set of information to the second set of information to determine whether the content should be transmitted to the networked device for display by the one or more applets. ('762 patent, col. 14, lines 9-43).

The '762 Patent has an interesting prosecution history. Samuel Gaidemak and Paul Chacko filed the '762 Patent on March 17, 2006, but the USPTO did not issue the patent until September 27, 2016. During those ten years, the PTO issued eleven office actions against the '762 Patent. On average a patent will face three or four office actions. The more office actions a patent faces, the more prosecution history estoppel the patent acquires, which is used to narrow the patent's claims and restrict the owner's use of the doctrine of equivalents. Groove Digital is asserting the doctrine of equivalents in addition to allegations of literal infringement. King has not yet filed an Answer in response to the Complaint.

Groove Digital is also suing United Bank for infringing the '762 Patent. Normally, we do not report on non-video game related case, but this is the only other lawsuit in which the '762 Patent is asserted. Groove Digital filed the lawsuit against United Bank on December 1, 2017, in the Eastern District of Virginia. The Complaint in that lawsuit alleges that United Bank's mobile banking app infringes the '762 Patent by using push notifications, and the Complaint filed against United Bank is very similar to the Complaint filed against King. United Bank has only filed a motion to dismiss for lack of jurisdiction. These lawsuits against United Bank and King could be the start of Groove Digital suing every mobile app developer that uses push notifications, so it will be interesting to see if Apple takes notice (in view of the integrated push notification technology built into iOS).

We will continue to follow Groove Digital's lawsuit against King and provide updates when available.
Call me old school, but Halo 2 is still my favorite multiplayer first-person shooter.  It was the most balanced FPS game I've ever played, and I still get excited with each new release.  The Halo franchise is one of those franchises that makes it in my top 10 list for all time best games (what are the other 9?  Well, there's the Myst franchise (including Obduction), but I'm otherwise still working on it).

Microsoft released a teaser video for Halo Infinite today, and it looks awesome. This will probably give me the push I needed to upgrade from my Xbox One to the newer Xbox One X. It wouldn't be the first time I've bought new hardware just to play a new game (Quake and America's Army also did that trick).

Check it out!

-Ross

On May 22, 2018, Sony Interactive Entertainment LLC (Sony) filed a petition for Inter Partes Review of U.S. Patent 8,206,218 (the '218 Patent), owned by Techno View IP. The '218 Patent is related to a method for displaying stereoscopic images based on how the right-eye and left-eye view the same object. Sony is alleging that the '218 Patent is invalid because it is obvious as a result of prior art.
 
 
Claim 1 of the ’218 Patent reads:
1. A method in a videogame system for displaying three-dimensional images, comprising the computer implemented steps of:

providing left and right backbuffers;

calculating first position coordinates of a first eye view;

storing a first eye view image captured virtually from the calculated first position coordinates of the first eye view of an object in the videogame into the left backbuffer;

determining a second eye view image of the object captured virtually from the calculated second position coordinates of the second eye view;

storing the second eye view image in the right backbuffer; and

displaying the first eye view image and the second eye view image to the user to provide a three dimensional perspective of the object from the videogame system to the user. ('218 patent, col. 13, lines 44-64).
The '218 Patent is related to U.S. Patent 7,666,096 (the '096 Patent), also owned by Techno View and also subject to an IPR petitioned by Sony. Both the '218 and '096 Patents are at the center of a lawsuit Techno View filed against Sony in the Central District of California, in which Techno View alleges that Sony's PlayStation VR infringes Techno View's patents. Sony is using the IPRs to challenge the validity of the allegedly infringed patents. Techno View is also suing Oculus VR claiming their VR system infringes the '218 and '096 Patents. Oculus was not part of the IPR petitions filed by Sony.

This is the third IPR petition Sony has filed this year relating to stereoscopic images. For background on the previous two IPR petitions click here and here.
PUBG Corporation, makers of PlayerUnknown's Battlegrounds, have filed a lawsuit against Epic Games, makers of Fortnite, in South Korea. The lawsuit was filed in the Seoul Central District Court in January. PUBG asked the Seoul Central District Court for an injunction against Epic, claiming copyright infringement. We do not usually comment on litigation outside the United States, but PlayerUnknown's and Fortnite are two of the most popular games, are both battle royale games, and both have had an enormous impact on the video game industry by popularizing the battle royale game genre as a whole.
 

So why sue in South Korea? Likely answer: sue where you think you can win. PUBG is a subsidiary of Bluehole, a South Korean game developer. Choosing South Korea as the forum gives Bluehole and PUBG home-court advantage. Also, the legal standard for copyright infringement might be different in South Korea than in America. The differences in the legal standards might give PUBG an edge depending on the claims asserted.

 
As of this writing, the specific claims PUBG is asserting against Epic Games are unknown. According to a Korea Times article, Bluehole had previously stated its belief that Epic Games copied core elements and the user interface of PlayerUnknown's. Earlier this year, PUBG filed a similar lawsuit against NetEase for copyright infringement in the US. PUBG filed that lawsuit in the United States District Court for the Northern District of California. In the US claim, PUBG listed a series of elements which individually may or may not be copyrightable, but which together they allege have copyright protection. Essentially, the claim argues that NetEase copied the total look and feel of PlayerUnknown's by including all of the similar elements listed. Check out our previous post for more on the NetEase case. Both lawsuits are in the very early stages of litigation, so there has not been any significant ruling yet.

PlayerUnknown's currently runs on the Unreal Engine 4, which is an Epic Game property. It will be interesting to see if there will be any fallout as a result of PUBG instigating litigation. As it stands now, this case is a big deal, but if this lawsuit grows beyond South Korea's borders, it could get UNREAL! (get it? Unreal, like the game engine? Sorry Canon, had to go there...).
Game and Technology v. Activision Blizzard et al., C.D. Cal.,
Case No. 2:16-cv-06499-MLH-SK, Filed August 29, 2016

On March 14, 2018, the Patent Trial and Appeal Board (PTAB) invalidated U.S. Patent 8,253,743 (the '743 Patent), which Game and Technology (GAT) owns and asserted in this lawsuit. Activision Blizzard, Riot Games, and Valve had petitioned for Inter Partes Review of the '743 Patent in response to litigation we had reported on earlier. The '743 Patent is related to the layering of items on a character avatar in a video game.
 
FIG. 5 shows avatars (gamvatars) having a game item function according to an embodiment of the present invention, and it exemplifies gamvatars 530 and 540 generated by combining an avatar 510 which wears clothes purchased at the avatar shop 430 and a game item 520 purchased at the item shop 440. The gamvatar 530 shows the avatar 510 but is arranged in the background layer. As described above, it is possible for the avatar 510 to wear the item 520 or not wear the item 520 depending on the user's setting. ('743 patent, col. 6, lines 33-44).
The PTAB found that the '743 Patent would have been obvious based on the combined teachings of a Diablo II manual and a 2005 publication of U.S. patent application 2005/0127015 A1 filed August 19, 2004. GAT filed an appeal to the United States Court of Appeals for the Federal Circuit on May 16, 2018.
 
Earlier, we had reported on Activision Blizzard and Wargaming filing a petition for IPR on another asserted patent, U.S. Patent 7,682,243 (the '243 Patent). The petition was granted but the PTAB has not yet issued a final written decision in that matter. The Central District of California granted a stay on the original lawsuit until the IPR and the appeals process for the '243 and '743 Patents have concluded.
 
In the original lawsuit, GAT claimed the defendants infringed upon three patents. Indeed, Activision had sought an IPR on the third patent, U.S. Patent 8,035,649 (the '649 Patent). But on February 28, 2017, the PTAB denied instituting a review of the '649 Patent. Then, on May 17, 2018, both sides jointly asked the District Court to drop all claims relating to the '649 Patent, which the court granted four days later.
 
As of this writing, the Central District of California case remains stayed until the PTAB and the Federal Circuit determine the validity of the '743 and '243 Patents, while the claims relating to the '649 Patent have been dismissed. We will continue to track any new developments.
On May 15, 2018, the Patent Trial and Appeal Board (the “PTAB”) instituted two Inter Partes Review (“IPR”) proceedings against U.S. 5,822,523 (the “’523 Patent”).  The ’523 Patent generally relates to group messaging in interactive applications.  The petitioner is Riot Games, Inc. (“Riot Games”), maker of popular titles like League of Legends The patent owner is Paltalk Holdings, Inc. (“Paltalk”).  From 2006-2009, the ’523 Patent was asserted by Paltalk in patent infringement cases against Microsoft, Sony, Activision Blizzard, NCsoft, Jagex, and Turbine Inc., among others.



Claim 1 of the ’523 Patent reads:
1. A method for providing group messages to a plurality of host computers connected over a unicast wide area communication network, comprising the steps of:

   providing a group messaging server coupled to said network, said server communicating with said plurality of host computers using said unicast network and maintaining a list of message groups, each message group containing at least one host computer;

   sending, by a plurality of host computers belonging to a first message group, messages to said server via said unicast network, said messages containing a payload portion and a portion for identifying said first message group;

   aggregating, by said server in a time interval determined in accordance with a predefined criterion, said payload portions of said messages to create an aggregated payload;

   forming an aggregated message using said aggregated payload; and

   transmitting, by said server via said unicast network, said aggregated message to a recipient host computer belonging to said first message group.
Both Riot Games and Paltalk agree that the ’523 Patent expired.  While it might seem strange for Riot Games to attack the validity of an expired patent, a patent owner may sue for damages that were incurred when their now-expired patent was valid, though they cannot recover damages that were incurred more than six years prior to the filing of the lawsuit.  As it appears that the ’523 Patent expired in 2016, Paltalk could potentially file patent infringement lawsuits up until around 2022, but only for damages that they incurred prior to 2016, and only so long as their damages were in the six years before they filed the lawsuits.  For example, if Paltalk sued a game company for patent infringement on Jan. 1, 2021, they could recover damages from Jan. 1, 2015, up until the date the ’523 Patent expired in 2016.
On May 15, 2018, Sony Interactive Entertainment LLC (“Sony”) filed a petition for Inter Partes review (“IPR”) of U.S. Patent No. 7,666,096 (the “’096 Patent”).  The owner of the ’096 Patent is Techno View IP, Inc. (“Techno View”).  The ’096 Patent generally relates to hardware and software for displaying stereoscopic images (e.g., by providing different images that are offset from a user’s left and right eyes to create a three-dimensional effect).  While not explicitly discussed in the petition, the IPR is likely related to Sony’s Playstation VR system.



Claim 1 of the ’096 Patent reads:
1. A method of displaying images in a videogame system that supports two-dimensional and three-dimensional display of the images, said method comprising the computer implemented steps of:
   clearing left and right backbuffers in the videogame system;
storing an image into the left backbuffer;
   determining if the image is in a two-dimensional format or a three-dimensional format, wherein when the image is in a three-dimensional format, calculating the coordinates of a second view position of the image and storing a second view position image into the right backbuffer;
   displaying the image stored in the left backbuffer onto one or more displays when the image is in a two-dimensional format; and
   simultaneously displaying the images stored in the left and right backbuffers onto the one or more displays to create a three dimensional perspective of the image to a user when the image is in a three-dimensional format.
This isn’t the first IPR that Sony has filed regarding stereoscopy.  Back in February, Sony filed an IPR petition against U.S. Patent No. 9,503,742, which relates to stereoscopic image decoding via data compression.

This filing is a great example of a defendants using IPRs to attack patents asserted in litigation.  Per Sony’s IPR petition, the ’096 Patent is involved in a patent infringement lawsuit (No. 8:17-CV-01268) filed by Techno View in the Central District of California against Sony.  The ’096 Patent was also asserted by Techno View against Sony in a U.S. District Court for the District of Delaware suit on May 15, 2017, though that case was dismissed.  Techno View has apparently also asserted the ’096 Patent against Oculus VR, LLC and Facebook, Inc.
Certain Portable Gaming Console Systems with Attachable Handheld Controllers and Components Thereof
International Trade Commission, Inv. No. 337-TA-1111

-and-

Gamevice, Inc. v. Nintendo Co., Ltd. et al
CAND-3-18-cv-01942


Last year, we reported on Gamevice's lawsuit against the Nintendo Switch filed in August 2017.  That case was voluntarily dismissed by Gamevice in October 2017 without comment as to why.

At the end of March this year, Gamevice came back to try again.  They filed corresponding lawsuits in the Northern District of California as well as at the International Trade Commission. On May 1, the ITC announced that it would institute the investigation against Nintendo.  The CAND case will be stayed now that the ITC investigation has begun, once the parties notify the court.

The ITC can be a desirable venue for patent owners because it offers an accelerated timeline and is more likely to award injunctions than District Courts.  Another significant advantage of the ITC in this age of inter partes review challenges is that the ITC typically refuses to stay its proceedings even if the USPTO decides to institute an IPR.  However, monetary damages are not available at the ITC.

The patents at issue are US 9,855,498 and 9,808,713, titled "Game Controller with Structural Bridge."  Looking at the '713 patent, the claims appear to recite a "structural bridge" connecting the two controllers.  One issue in this case may be identifying which component of the Nintendo Switch corresponds to the claimed "structural bridge."

US 9,808,713 - Fig. 35

This suit involves some newer patents that claim partial priority to the patents asserted in March of last year.  These are "continuation-in-part" patents from the earlier asserted patents, meaning they added some new material.  Importantly, these new CIPs name different inventors than the original patents, suggesting that the claims may be directed to the new subject matter.  If that's the case, then these patents will have a later priority date than their earlier parents, and the earlier parents might themselves become usable as prior art.  If the new subject matter in the claims is just an obvious variation of the earlier patents, yet was not disclosed in the earlier patents, Gamevice might have trouble defending their patents.

We'll continue to watch for interesting developments.


On April 23, 2018, Epic Games, Inc. (“Epic”) filed a response to a Motion to Dismiss filed by Lauren Rogers, the mother of a teenaged Fortnite hacker (“C. R.”) facing a copyright infringement and breach of contract lawsuit filed by Epic last year.


Epic’s complaint argues that C.R. infringed its copyrights by injecting unauthorized computer code (that is, cheats) into Fortnite.  C.R. allegedly recorded himself cheating in Fortnite and uploaded those videos to YouTube.  Epic filed a DMCA request to take down those videos, to which CR apparently replied: “i did noting rong this strike is all wrong I was modding in a video game that isn’t against youtubes TOS Why was i striked ‼!.”  According to Epic, C.R. had been banned from Fortnite at least fourteen times, but continued to dodge bans using fake names.  Neither C.R. nor his mother have legal counsel.

The suit is extremely similar to Epic’s other Fortnite lawsuits (discussed here, here, here, herehere, here, and here). 

Ms. Roger’s Motion to Dismiss, actually a letter filed by Ms. Rogers, allegedly admits that C.R. was a cheater but argues that the case should be dismissed because (1) Epic “has no capability of proving [that C.R. performed] any form of modification,” because (2) Epic “illegally” released C.R.’s name, because (3) Epic cannot prove “profit loss” from the cheating or that C.R. profited from his cheating, and (4) because Epic’s contracts (e.g., its terms of service) are invalid because C.R. is a minor.  Epic responded by not only moving to seal certain portions of the trial record, but also by arguing that it was not required to make certain proofs at the pleading stage, and that, in any event, Ms. Roger’s arguments were legally unfounded.

These developments appear to put Epic in a useful, albeit awkward, position.  On one hand, this suit provides a clear warning that even minors may find themselves sued for cheating in Fortnite.  On the other hand, Epic is now pursuing a copyright suit against an unrepresented teen and his mother – definitely an interesting position from a public relations perspective.

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