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From Law360:
Google won a high-profile jury verdict Thursday that its use of Oracle’s copyrighted Java software code in its Android mobile operating system was protected by the fair use doctrine, clearing the company of liability that could have reached $8.8 billion.
Read more here.

This is a HUGE win for Google and a big win for the Fair Use doctrine.  This case is sure to be appealed.  Incidentally, it will go to the Federal Circuit rather than the 9th Circuit, because the case once involved patents.  The Federal Circuit will apply 9th Circuit law, however, in deciding the copyright issues.  This case ain't over... but Google's lawyers are having one heck of a party tonight.


That Frog is a casual mobile game being developed by Pixabits with the help of students at George Mason University in Fairfax, Virginia. Game development is about 1/3 complete, and they are raising funds for the students to continue working over the summer while school is out. The game is an un-timed casual game that users of all skill levels can play single handed.

https://www.kickstarter.com/projects/pixabits/that-frog-kill-some-time-and-bugs

Back it.  Don't back it.  It's up to you.  But it's a project we like, and if we can help a client in a small way then we're happy to do so.


O'Donnell v. Ryan
Case No. 14-2-12439-2 SEA
Superior Court of Washington for King County

On April 11, 2014, Martin O’Donnell’s employment was terminated by Bungie’s board of directors. O’Donnell had been a composer for the Halo Series, as well as Destiny, and had been employed since 2000, starting his career as an audio director.

On May 1, 2014, O’Donnell filed a complaint against Harold Ryan, chief executive of Bungie, claiming that Bungie violated its employee agreement, failing to pay him for “unused vacation, paid time off, sabbatical time and other benefits.” The complaint stated that other, separate grievances were being handled through arbitration.

On May 27, Bungie filed a response denying all allegations. But, in Late July 2014, Bungie and O’Donell agreed to a settlement of $95,019.13 for unpaid benefits and unpaid work. 

Not really on-topic, so that's all we got on this one.  
U.S. Patent No. 8,535,153: Video game system and methods of operating a video game
Issued Sep. 17, 2013



Summary:

The ‘153 patent deals with video game systems with two forms of media. The first media contains information about a game and the second media stores information about a particular character. The patent describes a process of swiping cards or selecting characters from an external media source on which an individual character and that character’s attributes are stored. The media is updated with experience, skills, or rewards according to player success in using that character from that media source in a particular game. The patent allows for single or multi- player games that are competitive or cooperative.

Abstract:

Video game systems for executing instructions according to a video game contained on an item of first media including: an item of second media containing data defining an aspect of the video game; and a video game console including a housing, a first media device supported by the housing, a second media device supported by the housing, and a control unit supported by the housing and configured to control the first media device to read the item of first media and to control the second media device to read the item of second media.

Illustrative Claim:

1. A method of operating a video game involving multiple characters playable by multiple players, the method comprising the steps of:
       displaying an environment of the video game on a display screen;
       displaying an icon on the display screen during the video game;
       receiving, by a media device, an input from a first one of the players who provides an item of media after the icon is displayed; and
       attributing a reward associated with the icon with the character being played by the first player.

Hey law students, it's that time of year again.  The Patent Arcade is seeking a summer intern to assist with news, research, and drafting content for the blog.  A keen interest in video games is a must.  The incumbent will research video game patents, analyze video game lawsuits, and help prepare content for the blog.  If interested, please send a resume, writing sample, and law school transcripts to rdannenberg bannerwitcoff -dot- com.  The position is unpaid.
U.S. Patent No. 8,585,476: Location-based games and augmented reality systems
Issued Nov. 19, 2013

US08585476-20131119-D00000.png


Summary:

The ‘476 patent deals with virtual realities and augmented realities that rely on real world data to create the virtual world. The player’s location in the real world is tracked using GPS or some other location tracking device, such as a play mat, while the player uses some manner of virtual reality headset. The game uses that location and movement from that data to correlate with location and movement in a virtual world. The augmented reality may rely on visual input from the real world with supplementary elements added by virtual reality. The patent covers both major movements, such riding in a driving a car or traversing a field, and minor movements, such as hand movements.

Abstract:

Handheld location based games are provided in which a user's physical location correlates to the virtual location of a virtual character on a virtual playfield.

Augmented Reality (AR) systems are provided in which video game indicia are overlaid onto a user's physical environment. A landscape detector is provided that may obtain information about the user's landscape, in addition to the user's location, in order to provide overlaying information to an AR head-mounted display and control information to non-user controlled video game characters.

Illustrative Claim:

1. An augmented reality game system comprising:
      a head-mounted display that overlays virtual indicia onto a physical playfield;
      memory comprising video game logic that provides a video game;
      a wearable processor that utilizes said video game logic to provide video game indicia to said head-mounted display based on said video game logic, wherein said processor is coupled to said memory and said head-mounted display;
      a detector that determines landscape characteristics of said physical playfield, wherein said video game logic utilizes said landscape characteristics in providing said video game; and
      a locating device that determines the physical location of said locating device on the physical playfield, wherein said video game logic utilizes the physical location of said locating device in providing said video game.

OBAMA SIGNS LAW ALLOWING TRADE SECRET OWNERS TO SUE IN FEDERAL COURT

Yesterday, President Obama signed the Defend Trade Secrets Act (DTSA), enacting a federal trade secrets law. Much of the law existed under the federal Economic Espionage Act of 1996 (EEA). However, for the first time, the DTSA provides federal jurisdiction for civil cases involving the misappropriation of trade secrets.
The DTSA attempts to bring more uniformity and predictability to litigation of trade secret misappropriation claims by permitting trade secret holders to bring civil claims directly under the federal statute. Before the DTSA, private civil actions for the misappropriation of trade secrets were generally brought in state courts, with federal litigation of these actions being limited to cases having diversity and/or supplemental jurisdiction. Although 47 states have adopted the Uniform Trade Secrets Act (UTSA), which codifies the basic principles of common law trade secret protection, many state legislatures altered the original text of the UTSA before enacting it.1 As a result, state law variations from the UTSA have led to different procedural and substantive standards being applied by state courts in trade secret cases.2

DTSA DOES NOT PREEMPT STATE LAW


Nevertheless, the DTSA (which is grounded in the commerce clause of the U.S. Constitution) will not preempt state law, unlike patent and copyright laws, making the DTSA akin to trademark law coexisting with state law. Under the DTSA, an owner of a trade secret may bring a federal civil action for the misappropriation of a “trade secret that is related to a product or service used in, or intended for use in, interstate or foreign commerce.”3 Civil claims for trade secret misappropriation that are only related to intrastate commerce must still be brought in state courts, unless there is diversity or supplemental jurisdiction. Also, claims under DTSA must be brought within three years after the date on which the misappropriation is discovered or should have been discovered by the exercise of reasonable diligence.

MISAPPROPRIATION OF TRADE SECRETS


The DTSA definitions of “trade secret” and “misappropriation” generally mirror those of the UTSA. The DTSA defines “trade secret” as all forms and types of information that (1) the owner thereof has taken reasonable measures to keep such information secret; and (2) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by another person who can obtain economic value from the disclosure or use of the information.4 The in-depth definition of the term “misappropriation” in the DTSA includes, in part, (1) “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means,” or (2) “disclosure or use of a trade secret of another without express or implied consent by a person who … used improper means to acquire knowledge of the trade secret.”5 The DTSA states that the term “improper” includes “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means,” but excludes “reverse engineering, independent derivation, or any other lawful means of acquisition.”6

SEIZURE AS A REMEDY


Like most state trade secret law, remedies under DTSA include injunctive relief and monetary relief. However, seizure of property is a new remedy contemplated by the DTSA. A seizure request can be brought on an ex partebasis for the seizure of property necessary to prevent the dissemination of the trade secret that is the subject of the action.
However, the requirements for obtaining seizure are quite numerous and stringent under the DTSA. The party moving for the seizure must file an affidavit or verified complaint that satisfies each of the requirements listed under the statute.7 DTSA expressly states that an order for the seizure of property may be granted only in “extraordinary circumstances.” For example, in addition to specific requirements listed in the statute, if it clearly appears from specific facts that an immediate and irreparable injury will occur if such seizure is not ordered, the harm to the applicant of denying the application outweighs the harm to the legitimate interests of the person against whom seizure would be ordered, and the applicant is likely to succeed in showing that the information is a trade secret and the person against whom seizure would be ordered misappropriated or conspired to misappropriate the trade secret of the applicant by improper means.8
The DTSA includes several protections for the party against whom seizure is ordered. Namely, the statute requires the narrowest seizure of property necessary, stipulates that the court must schedule an evidentiary hearing within seven days (during which the order may be modified or dissolved), and allows a party against whom the order has been issued to move the court at any time to dissolve or modify the order after giving notice to the party who obtained the order.9 Also, any seized property remains in the custody of the court.10

WHISTLEBLOWER IMMUNITY


A widely discussed and controversial provision of the DTSA, not present in state trade secret law, is whistleblower immunity and the consequential affirmative duties placed on employers. Specifically, the DTSA provides “immunity from liability for confidential disclosure of a trade secret to the government or in a court filing” if a disclosure of a trade secret disclosure is made “in confidence to a Federal, State, or local government official…or to an attorney; and…solely for the purpose of reporting or investigating a suspected violation of law,” or is made “in a complaint or other document filed in a lawsuit…if such filing is made under seal.”11 Additionally, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding.12 However, the individual must file any document containing the trade secret under seal and otherwise cannot disclose the trade secret, except pursuant to court order.13
Also, in order to receive all available remedies under the DTSA, employers have an affirmative obligation to provide notice to employees of the immunity provisions.14 Failure to comply with this affirmative obligation will preclude the employer from recovering “exemplary damages or attorney fees.”15 The employer may provide the notice in any contract or agreement with an employee that governs the use of a trade secret or other confidential information or by providing a cross-reference to a policy document provided to the employee that sets forth the employer’s reporting policy for a suspected violation of law.16 Also, the definition of “employees” in the DTSA is very broadly defined in that it includes conventional employees as well as any individual performing work as a contractor or consultant.17 In view of the notice requirement, employers may be advised to review all employment-related contract or agreement documents that govern the use of a trade secret or other confidential information to ensure that these documents provide notice to employees of their rights under the immunity provision of the DTSA. The notice requirement applies to “contracts and agreements that are entered into or updated after the date of enactment [of the DTSA].” Therefore, while employers are not explicitly required to provide notice of the immunity to current employees, it may be advisable to amend contracts (or any other agreements that govern the use of a trade secret or other confidential information) with current employees in accordance with the notice requirement of the DTSA.

NO INEVITABLE DISCLOSURE DOCTRINE UNDER THE DTSA


The DTSA also protects former employees by restricting employers from preventing former employees from working at another company on the basis of the inevitable disclosure of trade secrets. Using the inevitable disclosure doctrine, employers in certain states can enjoin a former employee from taking a new job at another company that would inevitably result in the use of the company’s trade secrets. The DTSA does not allow for injunctive relief if doing so would “prevent a person from entering into an employment relationship,” thereby rejecting the inevitable disclosure doctrine.

SUMMARY


Time will tell whether the DTSA brings conformity to trade secret litigation as the new act does not preclude circuit splits. That being said, the DTSA gives litigants more options in enforcing trade secrets at a juncture where many patent rights are being challenged at the U.S. Patent and Trademark Office. Whether to file a civil trade secret complaint in state or federal court will depend on a multitude of factors, such as the desired results of the plaintiff and whether the immunity provisions will apply. The broad definition of “employee” in the DTSA highlights the importance of non-disclosure agreements and the monitoring of relationships with contractors and vendors (both domestic and abroad) that may have access to confidential information. Moving forward, companies should review their policies and agreements to ensure that they are in compliance with the immunity provisions and have a proper notice in place.
Please click here to view Obama’s remarks at the signing of the DTSA.
Please click here to download a printable version of this article.

1See, Brian Yeh, “Protection of Trade Secrets: Overview of Current Law and Legislation,” p. 6.
2See, Brian Yeh, “Protection of Trade Secrets: Overview of Current Law and Legislation,” p. 6.
3See, 18 U.S.C. §1836 (b)(1).
4See, 18 U.S.C. §1839(4).
5See, 18 U.S.C. §1839 (5).
6See, 18 U.S.C. §1839 (6).
7See, 18 U.S.C. §1836 (b)2(A).
8See, id.
9See, 18 U.S.C. §1836 (b)2(F)(iii).
10See,18 U.S.C. §1836 (b)2(D).
11See,18 U.S.C. §1833 (b)(1).
12See, 18 U.S.C. §1833 (b)(2).
13See,18 U.S.C. §1833 (b)(2).
14See,18 U.S.C. §1833 (b)(3)(The DTSA does not provide guidance on any verbiage that would constitute sufficient notice).
15See, 18 U.S.C. §1833 (b)(3)(C).
16See, 18 U.S.C. §1833 (b)(3)(B).
17See, 18 U.S.C. §1833 (b)(4)).
U.S. Patent No. 8,678,891: Video game systems and methods including protecting game character(s)
Issued March 25, 2014



Summary:

The ‘891 patent applies to multi-player games, in which each player controls a separate character. A player may input a command that protects that player’s character from harm, shown by a visual indicator, such as a bubble around the character, on the screen. Once a character is protected, the player loses control of the character, and the character moves according to the action of the other, unprotected characters, for example due to the scrolling of the screen. Certain conditions remove the character’s protection, returning that character to control through player input.

Abstract:

Example systems and methods relate to a video game in which multiple players each supply inputs to a respective input device to control a corresponding game character in a game world. Movements and actions of each game character are controlled in accordance with a first game character control operation during the playing of the video game. If one or more conditions is satisfied by one of the players, the one player's game character is protected from harm in the gameworld. Movements and actions of the protected game character are controlled in accordance with a second game character control operation. The protecting of the one player's game character is stopped in response to one or more protecting stopping conditions, whereby the game character is again controllable in accordance with the first game character control operation. If all game characters are protected, current playing of the video game ends.

Illustrative Claim:

1. A method comprising:
       while playing a multi-player video game in which multiple players each supply inputs to a respective input device to control a corresponding game character in a game world displayed on a display screen, controlling movements of each game character in the game world in accordance with respective first game character control operations during the playing of the multi-player video game;          in response to satisfaction of one or more conditions, protecting the one player's game character from harm in the game world; controlling movements of the protected game character in the game world; stopping the protecting of the one player's game character in response to one or more protecting stopping conditions, whereby the movements of the one player's game character in the game world are controllable in accordance with the first game character control operation for that game character; and if all game characters are protected during the playing of the multi-player video game, causing current playing of the multi-player video game to end.
The U.S. Copyright Office maintains an index of fair use lawsuits.  They recently sent out a reminder about the index, reproduced below.  Definitely worth checking out.

One year ago, the U.S. Register of Copyrights, in coordination with the U.S. Intellectual Property Enforcement Coordinator, announced the launch of the U.S. Copyright Office's Fair Use Index (“Index”).  The Index makes the principles and application of fair use more accessible and understandable to the public by providing a basic explanation of fair use as well as presenting a regularly updated searchable database of summaries of major fair use decisions.  So far, over 180 U.S. fair use decisions have been summarized, spanning every appellate jurisdiction and many categories of use, from music to digitization to parody.

In the past year, the Fair Use Index has received tens of thousands of page views and has led to thousands of downloads of the Copyright Office’s case summaries. These include more than 1,000 downloads for each of the following summaries: 
Rosen v. eBay, Inc. (2015)Katz v. Google Inc. (2015)Cambridge Univ. Press v. Patton (2014)Fox News Network, LLC v. TVEyes, Inc. (2015)Fox Broad. Co. v. Dish Network, LLC (2015)Kienitz v. Sconnie Nation, LLC (2014)

The Fair Use Index is not a substitute for legal advice, but is a helpful starting point for those seeking to better understand how courts across the country have applied the fair use doctrine to a variety of fact patterns. The Index is updated periodically.
The Fair Use Index may be accessed on the Copyright Office’s website at http://copyright.gov/fair-use/index.html.










Banner & Witcoff is seeking Associate Attorneys with 1-7 years of experience and a background in electrical engineering, computer engineering or computer science for its Washington, DC office. Patent prosecution experience is preferred. Associates will work closely with clients and senior attorneys in the preparation and prosecution of patent applications, with opportunities available for involvement in opinion work and litigation.  Admission to a state bar and to the USPTO are required. Qualified candidates should submit a resume, cover letter, writing sample, and transcripts (law school, undergraduate and/or graduate) through this link.  Candidates may also be considered for our Chicago office.

Banner & Witcoff is also seeking
current or prospective law students to work in its Washington, DC office as full time Law Clerks. The incumbent’s primary responsibilities will be preparation and prosecution of patent applications. The incumbent may also participate in various activities such as engaging with clients, assisting in ongoing litigation projects, performing legal research, and assisting with legal opinions and other IP-related projects. Full time law clerks may also be eligible to receive tuition assistance for law school.  Candidates must have an electrical engineering, computer engineering or computer science background and must be eligible to sit for the patent bar (see www.bit.ly/uspto-oed for more info).  To be considered, please submit a resume, cover letter, writing sample, and all post-secondary transcripts through this link.

Banner & Witcoff is dedicated to excellence in the specialized practice of intellectual property law, including patent, trademark, copyright, trade secret, computer, franchise and unfair competition law. The firm actively engages in the procurement, enforcement and litigation of intellectual property rights throughout the world, including all federal and state agencies, and the distribution of such rights through licensing and franchising. The firm has more than 90 attorneys and agents in its Chicago, Washington, Boston and Portland offices.
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