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B&W Wins Summary Judgment of No Copyright Infringement
September 29, 2005

Banner & Witcoff is pleased to announce that a legal team representing prominent video-game manufacturers and developers--Team Play, Inc., P&P Marketing, Inc., and Cosmodog, Ltd.--prevailed on a motion for summary judgment of no copyright infringement in Team Play et al. v. Stephen W. Boyer d/b/a Skyboy Productions.

The two, full-size, arcade, video games at issue on this motion were Sharpshooter and Police Trainer® 2. In 1997, P&P Marketing paid Mr. Boyer on a contract development basis to make portions of the Sharpshooter game. P&P Marketing then manufactured and sold the Sharpshooter game. Years later, Cosmodog independently created a video game called Police Trainer® 2. Cosmodog contracted with Team Play to manufacture and sell Police Trainer® 2. As a result of the foregoing, Mr. Boyer claimed that Team Play, P&P Marketing, and Cosmodog allegedly infringed Mr. Boyer's copyright registration in the Sharpshooter game.

On September 29, 2005, a federal court in Chicago held that there was no copying of source code from Sharpshooter to Police Trainer® 2. In addition, the Court held that there was no substantial similarity between any of the graphical art in the two games.

The legal team on this case representing Team Play, P&P Marketing, and Cosmodog included Banner & Witcoff attorneys Tim Meece, Mark Banner, and Jason Shull as well as Sheri Pellegrini from the Law Offices of Sheri Pellegrini. The decision citation is Team Play, Inc. v. Boyer, __ F.Supp.2d __, 2005 WL 2413344 (N.D.Ill. Sep 28, 2005) (NO. 03 C 7240).

Police Trainer 2:

Please note, the facts of every case are different. Prior results don't guarantee future success.
From Form 10-Q, dated 5/10/05, as filed with the SEC.

International Gamco, Inc. v. Multimedia Games (PENDING) S.D. Cal.

International Gamco, Inc.
International Gamco, Inc., or Gamco, claiming certain rights in United States Patent No. 5,324,035, or the ‘035 Patent, brought suit on May 25, 2004 against the Company in the United States District Court for the Southern District of California, claiming that the Company’s central determinant system, as operated in the New York State Lottery, infringes the ‘035 Patent. The Company currently sublicenses the right to practice the technology stated in the ‘035 Patent in Native American gaming jurisdictions in the United States, pursuant to an agreement between it and Bally Gaming, Inc. Bally obtained the right to sublicense those rights to the Company from Oasis Technologies, Inc., or Oasis, a previous owner of the ‘035 Patent.
As summarized by David Webber of the Melbourne office of Davies Collison Cave in Australia, the Australian High Court has allowed an appeal by Eddie Stevens who was previously found to have circumvented a technical protection measure in Sony’s PlayStation console.

"The High Court considered that the PlayStation did not include a 'technical protection measure', as defined in the Australian Copyright Act 1968 (Cth) because it did not prevent any copyright infringement. It was considered that any infringement would have already occurred through burning a CD-ROM for play in the console, and the mod chip installed by Mr Stevens was used for a different purpose, ie subsequent play of the game. Based on the evidence submitted by Sony, it was not established that any infringement under the Act occurred merely by playing the game."

Read entire article here.
As reported by the IP Law Bulletin, Sony and Immersion are back in court:

Sony has accused Immersion of fraud, alleging the company withheld statements from the inventor of the technology in question. Immersion fired back, saying Sony has initiated a smear campaign and accusing the company of misconduct.

In July, Sony Computer Entertainment filed a motion before Judge Wilken seeking relief from the final judgment on the grounds of alleged “fraud” and “newly discovered evidence” of purported prior art which Sony Computer Entertainment contends Immersion concealed and withheld.

“Immersion disputes and intends to vigorously defend itself against these allegations,” Immersion said in a recent Securities and Exchange Commission filing.

A hearing has been set for Nov. 4, at which time the various motions for discovery filed by both parties will be consolidated and heard by a California district court judge.

The misconduct allegations are the latest development in an extended legal battle that began over vibrating videogame controller technology.

In September 2004, a federal court awarded Immersion, a relatively unknown electronics developer, $84 million in damages after ruling that Sony infringed its patents for a technology that lets video game controllers vibrate in-sync with on-screen effects.

Sony appealed the decision, but the final judgment upheld both the infringement ruling and the monetary award. In addition, the court awarded Immersion $8.7 in prejudgment interest. The judge also ordered an injunction against Sony PlayStation controllers that used the infringing technology.

Sony appealed both the decision and the injunction in the U.S. District Court of Appeals for the Federal Circuit.

The lower court judge stayed the injunction while the federal appeals court processed Sony’s claim, ordering Sony to pay 1.37% in compulsory licensing fees for the duration of the stay.

Sony also appealed the compulsory licensing fee in federal appeals court.

Immersion had sued both Sony and Microsoft, claiming that Sony's controllers for its PlayStation and PlayStation 2 console, as well as Microsoft's Xbox controllers, infringe two of Immersion's patents on its sensory feedback technology.

The Sony and Microsoft video game consoles have controllers that rumble and vibrate in conjunction with certain events, like explosions, in some of their video games.

Microsoft later settled the case out of court, agreeing to pay $26 million to Immersion.
In July of last year, Microsoft said it would pay Immersion $20 million to obtain licensing rights to the touch-based technology and $6.million to buy a 10% stake in the small company.

In 2001, Immersion settled another lawsuit over similar technology against InterAct Accessories, the largest distributor of gaming accessories in the U.S.

Immersion is represented in this matter by attorneys for Irell & Manella LLP. Sony is represented by Weil Gotshal & Manges.

The case is Immersion Corporation v. Sony Computer Entertainment America Inc. et al, case no. 4:02-cv-00710, U.S. District Court for the Northern District of California.
EA and Steven Spielberg Team Up to Develop Videogames - Xbox

This is yes another example of a hollywood director teaming up with a major video game developer. Perhaps people will begin to take IP rights in video games a little more seriously...
JVW Enterprises, Inc. v. Interact Accessories, Inc.
__ F.3d __ (Fed. Cir. 2005)

Interact Accessories Inc., a major video game accessories maker in the U.S., suffered a setback Monday after a lower court decision for the company was partially reversed by the U.S. Court of Appeals for the Federal Circuit.

Rival company JVW Enterprises Inc. sued Interact in September 1999 in the U.S. District Court for Maryland, asserting its patent for a video game accessory that reduces physical stress on hands and wrists while operating a control device. The Federal Circuit found the district court erred in its claims construction and, as a result of the lower court’s erroneous construction, Interact’s V3 and V4 racing-wheel products were cleared of infringement in a May 2003 judgment. The products simulate driving in certain games. The Federal Circuit determined, using revised claims construction on the adjustability of the devices, that the V3 product infringes JVW’s patent, while the V4 product still does not infringe (for different reasons).

JVW’s patent covers a controller-holding device that extends from a small base between the player's legs to support a platform over the player's lap. The platform holds the controller in place. That allows the player to use both hands to operate the game controls, rather than having to hold the controller itself.

The claims construction at the heart of the decision related to the patented device’s “lockability” feature for adjusting the controller’s position and allowing interchangeability of controllers on the mounting device. The district court’s bench trial focused on that feature, finding that Interact’s accused products cannot lock and unlock because they are sealed in place. JVW sought to eliminate the word “lockably” from its patent claim to more effectively assert it against Interact’s non-locking device, but the district court rejected the argument.

With the Federal Circuit’s new interpretation of the claims construction, the accused products are found to be lockable, even though tools would be required to unlock the controller from the mount to adjust it or attach a different controller. As a result, the V3 product was found to infringe JVW’s patent. “Neither of Interact’s alternative arguments to support the [district court] judgment are persuasive. Both would require us to limit claim language to the specific embodiment disclosed in the written description. This would be improper. We do not import limitations into claims from examples or embodiments appearing only in a patent’s written description,” the court wrote. The V4 product fared better, despite the new claims construction. The court ruled that even though the district court’s finding of non-infringement for the V4 was based on an incorrect claim construction, the product’s locking ability and interchangeability with other controllers was still not similar enough to the claims in the patent.

The patent in question was issued in 1985 to an inventor for JVW in, entitled “Apparatus for playing home video games”. It was intended to solve the problem of fatigue in the wrists, experienced after holding an Atari joystick. The patent at issues is U.S. Patent Number 4,494,754.

Read Opinion Here.
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