As you may recall, Sony lost a lawsuit for millions of dollars to Immersion regarding Sony's use of vibration technology in its PlayStation 2 controllers. Sony subsequently announced that the PlayStation 3 would use motion sensing controllers instead of vibration controllers. Sony appears to be taking the matter seriously, and has at least one patent application pending on its motion sensing technology, United States Publication No. 2006/0267935, entitled "Remote input device." The application was filed May 27, 2005, and recently published on November 30, 2006. The application still has to be vetted by the United States Patent and Trademark Office before a patent will issue, but its a good sign of the direction that Sony is headed.

Link to USPTO copy of application.
U.S. Patent Number 6,669,564: Episodic Delivery of Content
Issued December 30, 2003, to Electronic Arts, Inc.

Electronic Arts has developed a way to negate the effects of technology advancing faster that software can be developed--a mechanism to provide episodic delivery of entertainment content to a user. EA apparently uses some sort of application module with episodic content technology (e.g., sold at stores, over the Internet, etc.). The application module contains an initial episode of the game and a technology shell to allow future episodes to be downloaded over the Internet and executed. As new technology is developed, the new technology can be incorporated into the technology shell, independent of the content development. While the patent describes a lot of these features, the (single) claim is a little elusive. It's interesting, though, that with Xbox Live we are seeing more games providing episodic content delivery after the game's initial launch.

Exemplary claim:
1. A method of providing an Internet-enabled game, the method comprising:
  • receiving information regarding a user's current state in the game;
  • responsive to the current state, enabling episodic content to be accessed by the user;
  • receiving a search request from the user; and
  • responsive to the current state of the user in the game, transmitting game-generated search results to the user.

What does this claim cover? We're not sure either. But when we figure it out, we'll let you know. To help out, however, we're posting some dependent claims as well, as they are somewhat informative...

2. The method of claim 1 wherein the search results are game-related responsive to the search request being game-related and the current state of the user indicating that the user is permitted to receive game-related search results.

5. The method of claim 1, wherein the current state information comprises a user action.

6. The method of claim 5 wherein the user action is calling a predefined telephone number.

7. The method of claim 5 wherein the user action is accessing a predetermined web site.

8. The method of claim 5 wherein the user action is requesting a specific search term.

9. The method of claim 1, wherein episodic content is stored within a third-party website that is content-related to the storyline, and the users are directed to the web-site to discover the episodic content.

10. The method of claim 9 wherein episodic content is placed on a third party web site for compensation related to user traffic to the web site related to users searching for the episodic content.

11. The method of claim 1, wherein an episode is made available responsive to determining whether the user has submitted payment, for the episode.
United States Patent No. 6,805,632: Video Slot Gaming Machine
Issued October 19, 2004 to Konami Gaming, Inc.


Here is a fine example of how a game company can similarly participate in the "gaming" industry. Konami's patent is for a bonus wild in a slot machine. The slot machine has rows and columns, as one would expect. The apparent novelty of Konami's machine is that they have incorporated a “bonus” element where the slot machine recognizes the bonus indicator when present in any of the columns, and modifies all the game elements within that column to represent a wild game element, without modifying any of the game elements in other columns in which a bonus element is not present. That catch, as many of us have spent many a penny/nickel/dime/quarter/dollar learning, is that the bonus-to-wild modification occurs only if a wild character in any one of the cells of the column would result in a winning outcome to a sucker, errr, player of the slot machine.

Exemplary Claim:

A video gaming machine, comprising: a housing having a display device for displaying a plurality of game elements in a grid having a plurality of cells defined by rows and columns; a memory device for storing a pay-table; a game controller coupled to the display device and the memory device, the game controller being adapted to randomly select the game elements to be displayed in the display device, from a set of possible game elements, and to determine an outcome based on the displayed game elements, the pay-table, and predetermined paylines; and wherein the set of possible game elements includes a bonus element, and wherein the game controller is adapted to identify the presence of the bonus element in one of the cells of at least one column and to modify all of the game elements within the column to wild without modifying any of the game elements in other columns in which a bonus element is not present and only if a wild character in any one of the cells of the column would result in a winning outcome to a player of the video gaming machine.
United States Patent No. 6,722,989: Virtual Pet Game in Which the Virtual Pet Can Converse with the Player and Learn New Words and Phrases from These Conversations
Issued April 20, 2004, to Sony Computer Entertainment Inc.

The '989 patent describes a portable electronic communication device with game software that simulates a virtual pet. The virtual pet is able to converse with a user who in turn is able to teach the pet new words. Attributes of the words are modified based upon the responses of a user to questions asked by the pet during conversation and stored in a database. For example, with reference to the figure above, the user might tell the pet that the word “Jane” is a “Human” (1 in the “Human” column) and not “Food” (0 in the column) and that the user really likes “Jane,” (with degree of 4 in the “Like” column). Next time, the friendly virtual pet may begin a conversation by saying something like “I just e-mailed Jane saying that you like her!” (after which the pet can learn a plethora of curses and swears from the user). This innovation may well give rise to various other incarnations, such as a virtual girlfriend that will only accept compliments, or a virtual gunner that will enlighten you with its knowledge of random subjects.

Exemplary Claim:
A communication apparatus between a user and an entertainment apparatus, the entertainment apparatus having at least a microprocessor, memory, display controller and means for inputting user commands, said communication apparatus comprising:

an electronic dictionary comprising words and associated status information related specifically to said words;

an alteration element to modify the status information of one or more words based on user interaction with said entertainment apparatus;

a sentence generator creating a sentence including said one or more words and based on said modified electronic dictionary word status information associated with said one or more words and adapted to a situation between a user and said entertainment apparatus, and

a sentence output element for outputting a sentence generated by the sentence generator to display as a message to a user.
U.S. Pat. No. 6,733,383: Systems and Methods for Simulating Game State Changes Responsive to an Interrupt Condition

Issued May 11, 2004, to Electronic Arts, Inc.

This Electronic Arts patent describes a simulation module to simulate events occurring during a cautionary period of an event, such as when in a NASCAR game a yellow flag is raised, or when a player wrecks out of a race. During this “cautionary period,” a user may, for example, obtain performance related-statistics; view a partially or complete simulation of a completed race; or determine the projected outcome of an ongoing race based on current statistics. Several aspects of the invention include (1) a method to interrupt a normal game, simulate parts of the ongoing game, derive updated statistics, and resume the game; (2) a method to interrupt a normal game, derive statistics from the normal game, and compare such statistics with statistics from a past or predicted outcome; (3) and a collection of files configured to store such data on a computer-readable medium.

Exemplary Claim:
1. A method of simulating game state changes responsive to an interrupt condition in a computer-implemented racing game, comprising:

generating an interrupt condition during game play of the racing game at a first game state, the first game state having a first set of statistics associated therewith;

responsive to said interrupt condition, interrupting game play and calculating a second set of statistics associated with a second game state by simulating events that occur after the first game state based on the first set of statistics; and

wherein the second game state is a completed game state, and wherein the second set of statistics includes statistics associated with a completed race.
There have been quite a few distributed computing projects over the years. Sony's plan is perhaps the most ambitious yet. The PS3 has a Cell Broadband Engine (CBE) chip, the same used in IBM's new supercomputer. PS3 owners will be able to download a small program to their PS3 to allow scientists to use the PS3's downtime for scientific research, turning what would previously have taken years to calculate into mere months, or less! Don't worry though, if the PS3 is running a game, the distributed computing process is suspended so you don't get any lag, thereby causing you to get fragged.

Read more here.
U.S. Pat. No. 6,764,402: Image-Display Game System And Information Storage Medium Used Therefor
Issued July 20, 2004 to Nintendo Co., Ltd.

Nintendo describes the multi-player, portable version of its Pokemon game in this patent. In the pokemon game, each player collects and trains pokemon. When another player is encountered, the pokemon battle each other and the winner captures the loser’s pokemon. Capturing a pokemon includes transferring information about its appearance, strength, etc. to the wining player’s game machine.

Battling other actual players, as opposed to simulated opponents, is encouraged by allowing pokemon captured from another player to have a “virus” that allows them to be more effective in battle. The virus spreads quickly, thus helping a player’s entire collection of pokemon. The patent explains that players whose pokemon have the “virus” will become popular: “The player who luckily captures a virus-infected pokemon … becomes busy with other players’ requests for pokemon data exchange, thereby increasing popularity among other players. As such, the game is useful for cultivating friendship with other players.”

Although the game may bring you new friends, those friends don’t have to stick around once they’re done using you. It is possible to receive information about player and his cadre of Pokemon, and then do virtual battle with him later on. There may be some disadvantages to this approach, however. The properties of the pokemon change with the time of day, and a battle that takes place at night may come out differently than a battle that takes place during the day.

The patent also describes a system for allowing players of different versions of the game to battle each other: Whatever information about a captured pokemon is unavailable from the old version of the game gets made up (assigned randomly) at the time of data transfer. Conversely, data about a pokemon from the new version that cannot be received by the old version is discarded. This ingenious system can also be used to allow users who upgrade to the new version to transfer their old collection of pokemon.

Exemplary Claim:
A method of operating a multiplayer video game system for playing a video game involving characters that may be captured by a player comprising the steps of:

establishing communication between a first player’s video game device and a second player’s video game device;

associating time related data with at least a first video game character that may be captured by a player;

controlling the display of said first video game character based upon said time related data;

receiving by said first player’s video game device identification information identifying said second player; and

storing data in said first player’s video game device relating to said at least one video game character associated with said second player including said time related data.
As you may recall, we took quite a bit of flack from the software developer community on Slashdot for our previous article published by Gamasutra. Some of the comments had to deal with the patent system in general, but many of the comments were directed to patent quality, or the alleged lack thereof. Yes, many people claim that the video game patents we mention are a bunch of hogwash, invalid as can be, etc., etc., etc.,

The USPTO has made overtures regarding farming out patent searches, and opening up prior art for public commentary in the hopes of improving patent quality. One web site has beat them to the punch, so it appears. aims to provide "public patent clarity" and claims to contribute to the US patent system by commenting on issued patents and (soon) published U.S. applications. The website appears to operate similarly to previous proposals, as a public sounding board for the relevance of prior art cited against a patent, and a venue to comment on the alleged validity of a patent. posts information about issued patents, and expects members of the public to provide commentary on the relevance of the prior art as it may or may not apply to the validity of the patent.

Now the question is: will the public respond? Do enough people care AND have the time to review prior art and comment on issued claims and published applications? Will members of the public even appreciate that what is described is not necessarily what a patent claims? Will patent examiners begin to use this as a resource during their examination procedures, even if informally? Will (or other sites like it) improve patent quality? There will certainly be the extremists on both sides that chime in one way or the other, but only time will tell if the site is a success...
For those who remember the original Star Fox (as mentioned in our previous post regarding the Star Fox patent), Nintendo has announced Star Fox Command for Nintendo DS.

Read the full story here.
U.S. Patent No. 6,261,179:
Video Game System and Video Game Memory Medium
Issued Jul. 17, 2001, to Nintendo Co., Ltd., Kyoto (JP)


Remember StarFox? I do (I'm getting old). The '179 patent describes a number of gameplay aspects of a video game in the StarFox series. As the patent correctly professes, I always enjoyed the ability to select the level I played, instead of having to sequentially move through each level every time I started the game. Allowing the player to replay a level without resetting the game the player avoids being “burdened with unwanted labor, thereby losing his interest in the game or having a burdensome feeling….” In addition to being able to choose the level I start at, I also liked the fact that only my highest score from each level counted towards my final score.

While the '179 patent only claims the above concept, it nonetheless also describes detecting collisions to individual sections of the plane the player is flying, instead of processing a hit on any part of the plane in the same way. Let me restate that. The entire plane doesn't blow up when it gets hit (a la Galaga), but instead, only the portion of the plane that got hit blows up. This allows, for example, for individual wings of the plane to be shot off, but the plane remains navigable (to some extent) by the player. Nice feature. I'll have to check to see if they claim it in a related patent.

Another feature described (but not claimed) is that of automatic messages shown in the picture below. When it is possible to easily attack the enemy or avoid crises by performing an operation, instructions for performing that operation appear on the bottom of the screen. If multiple messages are possible at a given time, only one is chosen based on a pre-defined hierarchy of importance. This allows “the player, even if unskilled” to advance in the game. Was this perhaps an early patent directed towards in-game hints??? Again, I'll have to check to see if they claim this feature in a related patent.

Exemplary Claim:

A video game system for playing a video game having a plurality of different courses through which a player can successively advance by successfully completing a current one of said plurality of courses, said video game comprising:

a course choosing screen which enables the player to select a course to play from said plurality of courses when starting said video game and upon finishing a current course;

a first score counter for determining a current course score that the player has achieved by finishing a current course of said plurality of courses;

a score controller for writing a current course score to a memory upon completion of each course, wherein said score controller resets said current course score for said current course to an initial value if said user chooses to replay said current course using said course choosing screen after finishing said current course; and

a second course counter for combining each course score in said memory to provide an overall score for said video game.
Not even having time to revel in its recent victory in the C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media lawsuit (No. 4:05-CV-00252 (E.D. Mo.)) regarding the use of player names and statistics in fantasy sports games, the Fantasy Sports industry is under attack again. This time, for gambling.

The controversial question: Are these pretend sports just another form of gambling?

That's what a man claims in a lawsuit that alleges that media including the ESPN cable network, CBS and The Sporting News are getting away with illegal gambling by hosting pay-to-play fantasy leagues, complete with big cash prizes and wide-screen TVs.

At the heart of his complaint is that fantasy sports -- a $1.5 billion industry with more than 15 million players -- are games of chance, not skill, and therefore qualify as gambling.

Read more here.

An interesting twist, for sure.

U.S. Pat. No. 6,752,718: Role Playing Video Game Using Cards
Issued June 22, 2004, to Square Enix

Developers from Square Enix, publishers of the Final Fantasy series, describe a role-playing game using scenario cards. During the course of the role-playing game, the player is presented with multiple cards from which to choose. For example, each card may represent a different scenario. The player’s selection will directly affect the player character's subsequent development of the story in the game. For example, upon being presented with cards representing branching quests, a player can select which quest to embark upon (e.g., rescue the town from evil wizard or flirt with waitress in tavern).

Exemplary Claim:
A game program for causing a computer to execute a role playing game which changes a development of a story forming the game on a screen according to an operational input of a player,

wherein the game program causes said computer to execute:

a displaying procedure for displaying a plurality of cards on said screen, each card comprising indicia associated with a significance of the card;

a selecting procedure for selecting one of said plurality of cards displayed in said displaying procedure according to the operational input of the player; and

a determining procedure for determining the development of said story according to a selected card,

wherein selecting of each card always directly affects a player character and the development of the story.
U.S. Pat. No. 6,522,333: Remote Communication Through Visual Representations
Issued February 18, 2003 to Electronic Arts

Electronic Arts has improved the traditional in-game (or out-of-game) chat feature. Instead of informing your sarcasm-impaired friends that you’re joking by typing ;-), you can instead make an on-screen avatar wink for you by typing (wink). In addition, the software can animate your avatar based on natural language processing techniques. A default mood (such as “humorous” or “stone-cold-serious”) is set in order to make sure the system animates ambiguous phrases correctly. This preset can be temporarily or permanently overridden at any time. Gestures can also be programmed to occur every time a specific word is typed. With all these features, you’ll never need an emoticon again... :-)

Exemplary Claim:

A method of communicating over a network comprising:

receiving a data communication from a first user, wherein the data communication contains behavioral movement information;

translating the received behavioral movement information into a choreography sequence of behavioral movements of a figure of the first user by:

responsive to the data communication containing text, processing the text in accordance with at least one natural language processing rule; and

constructing a choreography sequence from at least one behavioral movement associated with at least one natural language processing rule; and

animating the figure responsive to the choreography sequence.

CBC v. MLB, E.D.Mo. (Aug. 8, 2006)

For those that have been following this case, the District Court on Tuesday, August 8, 2006, ruled in favor of CBC fantasy sports, and completely against MLB and the Player's Association. The court held that 1) fantasy sports are not a violation of players' rights of publicity; 2) even if fantasy sports were a violation of the right of publicity, that right is preempted by the First Amendment; 3) player names and statistics are not copyrightable; and 4) similar to patents and trademarks, when a copyright license is deemed to cover material that is not copyrightable, prohibitive clauses that remain once the contract is terminated are against public policy and therefore void.

The only remaining question: will MLB appeal?

This just made me laugh. The things you can do in an auditorium...


United States Patent No. 6,935,954: Sanity System for Video Game

Issued August 30, 2005, to Nintendo of America, Inc.

This patent by inventors from Nintendo of America Inc. discloses a video game system that modifies, monitors, and reacts to a game character’s sanity level. A character’s sanity level is modified by an amount based on the player character’s reaction to a particular occurrence or event in the game. In addition, game play and in-game effects may also change based upon a character’s sanity level. The sanity level of the suspicious Link-looking character in the figure, for example, may not be affected as much since a well-prepared warrior with shield and sword in tow will likely not be intimidated by an otherwise terrifying flying skull with bad teeth. Or the character may have been on the brink of insanity to begin with (after scouring Hyrule unsuccessfully for his lost princess) and the flying skull is actually part of his hallucinations. Now, if only people can monitor their sanity levels in real life…

Exemplary Claim:
A method of operating a video game including a game character controlled by a player, the method comprising:
a) setting a sanity level of the game character;
b) modifying the sanity level of the game character during game play according to occurrences in the game, wherein a modifying amount of is determined based on a character reaction and an amount of character preparation; and
c) controlling game play according to the sanity level of the game character, game play being controlled at least by varying game effects according to the game character sanity level.
Welcome to the first post of our VIDEO GAME PATENTS feature. May we present:

U.S. Pat. No. 6,923,717: Adrenaline Feature for Sports Video Games
Issued August 2, 2005 to Nintendo of America, Inc.


The '717 patent describes describes various methods of controlling a video game. In addition to all the regular buttons, joysticks, d-pads, thumbsticks, triggers, vibration motors, and other widgets and cogs found on video game controllers, Nintendo now allows the to control a level of virtual “adrenaline” of a player in a video game. A user can control the adrenaline level, e.g., with an analog trigger. When the adrenaline level is high, players in the video game act more aggressively. However, the players’ chance of overreacting also increases when the adrenaline increases. For example, a basketball player is more likely to block a shot if his adrenaline level is high, but the player is also more likely to commit a foul. Nintendo’s adrenaline feature adds more control and realism to sports video games. What's next? The "steroid" trigger?

Exemplary Claim:

1. A method of controlling game play in a sports video game, wherein a user interactively controls a sports game character in a virtual sports game environment using a game controller, the method comprising:
defining initial character parameters for the sports game character and an opposing sports game character for use during game play, wherein the initial character parameters define play characteristics for the game character and the opposing game character;
detecting user input from at least one control element on the game controller requesting an animated action by the game character;
reading an adrenaline value from an analog control element on the controller indicating a level of aggression desired by the user for the animated action, wherein the analog control element is different from said at least one control element;
adjusting at least one of the initial character parameters for the game character based on the adrenaline value;
performing the animated action by the game character using the at least one adjusted character parameter, wherein the at least one adjusted character parameter is related to the animated action and influences the success or failure of the action depicted by the animated action; and
adjusting at least one of the initial character parameters for the opposing character based on the adrenaline value and performing an animated action by the opposing character at the same time as the same character's animated action using the adjusted character parameter for the opposing character.

(Last Updated August 2, 2011)


We will endeavor to track and inform our readers regarding United States Patents (and various interesting foreign patents) directed to video games. Yes, we realize that there are endless patents that could be applied to video games if you squint your eyes and look through frosted glass, but we are going to concentrate on patents that are squarely directed (ok, mostly square) to game play methods and interesting aspects of video games. Examples of things we will NOT comment on include graphics rendering techniques, audio/video compression, hardware (most of the time), and other behind-the-scenes aspects of video games. That having been said, here is our initial list of video game pantents, which we will continually update and elaborate on.

Click on a link to read more about a patent. We'll get to them all eventually.

Table Key:
G= Gameplay
H= Hardware
UI= User Interaction
RPG= Role Play Game
FPS= First Person Shooter
MVG= Multiplayer Video Game

If you know of any patents that should be included on this list, please let us know!
Davidson & Associates, Inc. v. Internet Gateway
__ F.3d. __ (8th Cir. 2006)

Better known as Blizzard v. bnetd, this case curbs the development of new computer programs that interoperate with existing ones when faced with potential infringements under the Digital Millennium Copyright Act (DMCA). Blizzard, producer of popular computer games such as “Diablo,” “StarCraft,” and “WarCraft,” hosts an online-gaming service called “” designed as the exclusive way for owners of Blizzard games to play each other via the Internet. A purchaser of a Blizzard game is presented with an End User License Agreement (EULA) and Terms of Use (TOU), both of which prohibits reverse engineering, that must be agreed to before the software may be installed, as well as a unique CD-Key that serves to authenticate the software with

Bnetd was an open source software package that emulated the service and allowed users to play Blizzard games on their own user-created servers instead of having to connect to While players must supply a CD-Key to connect to bnetd, its validity is not authenticated as on, thus allowing potentially pirated copies to be connected. Blizzard filed suit in the District Court for the Eastern District of Missouri against the three developers of Bnetd, as well as an ISP (Internet Gateway) that hosted a bnetd server, for violating the terms prohibiting reverse engineering in its games’ EULA and TOU, and the anti-circumvention and anti-trafficking provisions of the DMCA. The district court granted summary judgment in favor of Blizzard, finding the EULA and TOU contracts to be enforceable, thus vitiating any “fair use” defense, and that defendants violated the provisions under the DMCA.

On appeal, the Eighth Circuit affirmed all judgments in favor of Blizzard. The Eighth Circuit rejected the defendant’s argument that federal copyright law, which permits reverse engineering, preempts state contract law in which the EULA and TOU was grounded. The Court held that by agreeing to the EULA and TOU, the developers expressly relinquished their rights to reverse engineer. Other circuits, notably the Ninth Circuit, have declined to enforce similar shrink-wrap license agreements, suggesting that Blizzard’s choice in selecting the district court in Missouri rather than its home state of California was a tactical decision to keep the case out of the Ninth Circuit on appeal.

Regarding the DMCA violations, the Eighth Circuit held that bnetd violated the anti-circumvention and anti-trafficking provisions in allowing unauthorized copies of Blizzard games to be played on its servers, thus circumventing’s authentication measures. Furthermore, the interoperability exception under the DMCA that protects individuals using circumventing technology for the sole purpose of trying to achieve interoperability of computer programs through reverse engineering did not apply to bnetd as the circumvention in this case constituted infringement.

Editor’s note: While Blizzard won the lawsuit, the distribution of bnetd derivatives and similar server emulators has not ceased. See, e.g., PvPGN and BNCS. Also, the Electronic Frontier Foundation maintains an archive of materials relating to this case.
Thanks to Han Xu for his assistance with the preparation of this post.
It appears the Sony/Immersion dispute is not over. As you may know, Immersion makes vibration technology for game controllers. The Northern District of California held that Sony infringed Immersion's patents, and awarded Immersion $82 million as a reasonable royalty. Sony has appealed the case to the Federal Circuit, making only one argument--that Immersion hid evidence. Sony's appeal brief contains its allegations. I'm working on compressing it so I can upload it, but in the meantime you'll have to get it from the court, or send me an email and I will forward it along. Interesting reading...
As promised in my previous post regarding a general introduction to IP, linked below you will find a previously published article regarding the preservation of patent rights. This article may be particularly useful for software developers and programmers working on video games and video game software. As you may know, certain actions that you do or don't take may have an adverse affect on your patent rights, and this article discusses those issues and provides a more in-depth introduction to patent law and patent rights in the United States (with a brief introduction to foreign patent rights). Due to the length of the article, it is available in PDF format only. Happy reading.

Please email me for a copy of the article.
Mountain View, Calif.-based Ageia Technologies Inc., is the first to offer a specialized computer chip — called "PhysX" — designed to give video games a better sense of reality, as dictated by Newtonian physics. How will this affect games? For example, carve a wrong turn in the deep powder of the video game "Stoked Rider: Big Mountain Snowboarding" and you'd better brace for an avalanche of swirling white snow engulfing everything as it crashes down the mountainside.

Read more here.

This will pose interesteding gaming possibilities as developers strive to create more realistic games, and hopefully we will see a new wave of video game innovation along with it.
WARNING: Shameless plug to follow!

While not technically video game related, I have been quoted in an article on ABC News regarding the litigation/issue in Norway regarding Apple's iTunes/iPod tie. While, as with any quote, it is a little misstated by the reporter (not me!), it nonetheless gets the point across. Is there a solution that Norway can forge, or does it face losing iTunes altogether? On the other hand, would Norwegians rather have iTunes, but be restricted to playing songs downloaded from iTunes only on an iPod?

This is an issue that Apple is facing more and more, and one that certainly will take some time to resolve. We'll keep you posted.

Link to article.

Why Wolverine should never scratch his nose…

Marvel Enterprises, Inc. et al. v. NCSoft Corporation, et al.

(Headnote: subsequent to our previous posting on this case, the parties have settled...)

Amid the frenzy of superhero films hitting theaters this summer, it is important to remember that superheroes exist not just as men and women in spandex, but also as intellectual properties of their respective copyright holders who might not be very amused if you try to slip into some suspiciously similar virtual tights. In a suit filed in November of 2004, Marvel, best known for characters such as Spider-Man, the Incredible Hulk, and the merry mutants of X-Men, sued NCSoft, makers of the popular massively multiplayer online game "City of Heroes,” which enables players to create and play as characters with superhero attributes, for various copyright and trademark infringements.

Marvel claimed that NCSoft was directly, contributory and vicariously liable for copyright infringement for, inter alia, knowingly copying numerous Marvel characters, knowingly permitting infringing conduct of their users who were copying Marvel characters, and benefiting financially from the infringing conduct of its users. The screenshot shown above, along with others, were introduced by Marvel as exhibits to substantiate its claims. The resemblance to Wolverine is uncanny, but the real kicker is that the character, along with others used as exhibits, were actually created by Marvel to demonstrate the potentially infringing characters a user could create in NCSoft’s game. These exhibits were stricken as “false and sham.”

Marvel further asserted direct, contributory and vicarious liability for trademark infringement, claiming that the name of a NCSoft’s character, “Statesman,” was likely to cause confusion with Marvel’s own “Captain America,” and that users of NCSoft’s game create character names that infringe upon Marvel’s trademarks. Marvel asserted similar trademark claims under California’s common law, as well as the tort of interference with prospective economic advantage, claiming that NCSoft knew or should have known that their copyright and trademark infringement would interfere with Marvel’s economic relationships with third parties by misappropriating or diminishing the value of Marvel’s intellectual property rights in its characters.

On NCSoft’s motion to dismiss for failure to state a claim for all claims, the District Court of Central District of California denied the motion as to the copyright infringement claims, finding Marvel’s allegations to be sufficient in stating the claims. NCSoft’s motion to dismiss as to the trademark claims under the federal statute was granted because a finding of likelihood of confusion as to the names “Statesman” and “Captain America” would be unreasonable, and because Marvel did not allege that the game users were using the infringing names for commercial activities, as required for a federal trademark infringement action. However, Marvel’s trademark claims under California common law survived the motion to dismiss, as well as the interference tort claim.

Because a motion on the pleadings does not concern the merits of the claims themselves, it is difficult to gauge the seriousness of Marvel’s allegations, let alone speculate as to how the case might turn out. But suffice to say, it was enough to prompt the two sides to reach a settlement in December 2005. While the exact terms of the settlement remain undisclosed, the proliferation of costumed characters in “City of Heroes” reminiscent of Marvel characters suggests either Marvel graciously acquiesced to such conduct or, more likely, reached some sort of financially benefiting settlement.

(Thanks to Han Xu for his assistance with this case summary)
We've fielded some inquiries regarding materials providing an introduction to intellectual property, as well as more basic information regarding patent law in general. Below is the text to an article that Jordan Bodner and myself wrote as a very high-level introduction to intellectual property. You may also download a copy of the article here.

---cut here---
This article serves to provide a general introduction to intellectual property and how it can be important for your business. Intellectual property, or “IP,” is not property in the same sense as real property or chattels; it is not tangible. However, one can buy and sell IP just like other property, just as one might sell a house.

So what are we talking about when we refer to intellectual property? Intellectual property rights are a collection of rights primarily governed by patent, copyright, and trademark law. Each of these rights serve to motivate inventors and authors to continue to create IP by providing limited protection against copying of trademarks, inventions, and works of authorship. For example, without patent protection, inventors would keep inventions secret, or eschew research and development altogether, for fear that others would copy their inventions and take profits that otherwise would be reaped by the original inventor.

A trademark is any name or symbol indicative of a source of origin of a product or service. It should not surprise you to learn that your business already has a trademark — your business name, and most likely also the brand name of your product or service. A trademark is one of your most valuable business assets, because it represents who you are and how consumers recognize your business. Trademarks are perhaps also the most recognizable form of IP. You can hardly drive down a major road without encountering a sign for a McDonalds® restaurant or a sign advertising Coca-Cola® brand soda. Many consumers purchase goods and services based on name recognition alone.

There are two means by which you can protect your trademark from being copied. The first is through state trademark laws. Each state offers trademark protection based on the use of the trademark in that state. The second (and more effective) means is to register the trademark. In the U.S., a trademark is registered through the U.S. Patent and Trademark Office (USPTO), which provides nationwide protection. Registered trademarks offer advantages over non-registered trademarks. Once a trademark is registered, no other entity can use any name or mark that is identical to or is likely to cause confusion with your registered trademark, anywhere in the U.S. An exception arises where the other entity proves that it was using its trade name or mark prior to your trademark registration, in which case the other entity might have limited rights to use their name or mark in their geographic location.

Patents are another form of IP that protect inventions from being copied. A utility patent provides protection for any new and useful invention such as a new machine, article of manufacture, computer program, or process; a design patent protects new ornamental designs (e.g., the aesthetic appearance of manufactured goods, computer icons, graphical user interfaces, etc.); a plant patent protects new asexually reproducing plants (e.g., roses). All patents include a description of the invention as well as one or more claims that define the legal metes and bounds of the invention applied for. Determining these bounds accurately is important, because a patent provides a limited but powerful monopoly on what is claimed. That is, a patent prevents anyone other than the owner from making, using, selling, or importing an item, or performing a process, that is encompassed by its claims. Those acts would be considered patent infringement. A claim drafted too broadly may be invalid for attempting to encompass what is old or obvious. A claim that is too narrow may be ineffective against competitors making minor modifications to the invention.

To obtain a U.S. patent, a patent application must be filed with the USPTO, where it will be examined by an examiner to ensure that the claimed invention is new, useful, and nonobvious. Examination typically involves careful negotiation between the applicant and the examiner. Due to the complex legal requirements of patent applications, most inventors obtain the services of a registered patent attorney.

Once the USPTO issues a patent, the patent owner may negotiate a license with competitors, or sue infringers for an injunction and/or monetary damages. Because claims are generally drafted to encompass something broader than a specific commercial product, patents can provide broad protection against competitors who might simply try to make minor changes in an effort to avoid the patent. Say you invented a chair on roller skates and applied for a patent based on this invention. If a competitor then marketed a chair on roller blades, they might still infringe your patent depending upon how broadly the claims are drafted.

Copyrights are a third form of IP that protect the expression of ideas (but not the ideas themselves) from being copied. A copyright exists the moment an author fixes an expression in a tangible medium. The moment an author writes words on paper, an artist paints a picture on canvas, a sculptor chisels into marble, or a software developer hits the save button, the author of the work automatically has copyright protection without doing anything further. The author can also choose to register the copyright with the U.S. Copyright Office. As with trademarks, copyright registration provides certain benefits, such as the right to statutory damages and attorneys fees if there is copyright infringement. Nuances of copyright law can be very complex, so authors generally seek advice from a competent attorney for advice regarding specific factual situations.

This article has only presented a very brief introduction to the various forms of intellectual property. For more information or for intellectual property assistance, please contact the authors.

Ross Dannenberg & Jordan Bodner,, are partners with the Washington, D.C. office of Banner & Witcoff, Ltd., an intellectual property law firm. The views expressed in this article are solely those of the authors, and should not be attributed to Banner & Witcoff, Ltd. or any of its clients. THIS ARTICLE IS NOT LEGAL ADVICE, NOR DOES IT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH ANYONE. Seek advice of counsel to discuss your own situation. Our contact info is below.
Sorry for the radio silence, folks. I am pleased to report that we are continuing our efforts to update our listing of video game cases, and that case summaries for all cases are being prepared as I write this. Case summaries will trickle out as they are ready, and I will try to post them at least once per week. Thanks for hanging in there.
We previously reported that Lucent sued Microsoft, alleging that the Xbox 360 infringes one of Lucent's patents. Earlier this week Microsoft filed a counterclaim, accusing Lucent of infringing various Microsoft patents, as well as challenging the validity of the Lucent patent at issue. We will keep you posted as this case progresses.

Read more here
Ebay Inc. v. Mercexchange LLC
United States Supreme Court
May 15, 2006

(Not exactly a video game case, but worth noting nonetheless, as it will apply to video game lawsuits.)

Today the United States Supreme Court reversed the Federal Circuit decision in Ebay Inc. v. Mercexchange LLC, holding that injunctive relief is to be granted in patent cases using the same traditional test as in any other case, i.e., by weighing the following four factors: (1) irreparable injury suffered by the plaintiff; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

The Court reversed the Federal Circuit's previous "general rule" that permanent injunctions will issue once infringement and validity have been adjudged, indicating that "the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards."

Interesting dicta indicates that the Court takes no position as to whether an injunction should issue in this case or any other case, and that there are circumstances where a patent owner who is not practicing his/her patent (patent troll?) may still be entitled to an injunction.

Read the full opinion.
Marc Cooperman and Michael Krashin recently penned an article discussing preregistration of copyrights as an additional form of protection for video games. When video game software is pirated or leaked before the game's initial release, copyright preregistration provides an addition avenue of protection for video game developers. Their article discusses the basics of preregistration as well as some of the remedies preregistration provides.

Download the article here. (PDF)
A co-owner of a Hollywood video game store that caters to celebrity clients on Wednesday pleaded guilty to participating in a conspiracy to violate federal copyright laws by selling Xbox video game consoles modified to play pirated games.

Interesting sound bite: "We're like the Heidi Fleiss of video games," said Jones, referring to the famed "Hollywood Madam." He added that his supporters have stood by throughout the ordeal and that he plans to open a bigger, better store in another Los Angeles location.

Read more here.
A case with an interesting copyright twist has settled, thus scuttling our chance to see how a court would rule regarding copyright in cheat codes. In Allison v. Crave Online Media, David Allison owns or maintains, a website that provides cheat codes for various video games. Allison sued Crave Online Media for allegedly copying the cheat code postings from and putting them on its own web site. While Allison does not own the actual cheat codes (Allison is not a game developer), Allison claims Crave Online Media violated the copyright in the postings that included the cheat codes, to the extent there is additional copyrightable subject matter included in the postings. The extent of his copyright might be thin, however, since copyright does not protect underlying facts or ideas, it only protects their expression.

In any event, the guys over at the Davis & Company blog indicate that
the parties have settled on undisclosed terms. The case is Allison v. Crave Online Media, 1:2005cv01186 (USDC, District of Colorado).
In a newly filed lawsuit, Lucent claims that the Xbox 360 infringes its patent on MPEG-2 decoding. At the center of the dispute is Patent No. 5,227,878, "Adaptive Coding and Decoding of Frames and Fields of Video," issued by the U.S. Patent and Trademark Office (USPTO) to Lucent on July 19, 1993, according to court papers filed by the company in U.S. District Court in San Diego.

Claim 1 of the '878 patent reads:

1. An apparatus for encoding digital video signals, comprising:
a means for receiving a digital video input signal comprising a succession of digital representations related to picture elements making up at least one frame of a video image, the frame comprising a plurality of interlaced fields;
a means for coding groups of digital representations related to frames of picture elements;
a means for coding groups of digital representations related to interlaced fields in the frames; and
a means responsive to the digital video input signal for producing a field frame coding type signal which directs a selected one, but not both, of the frame coding means or the field coding means to code the digital video input signal.

Read more here.
China has upheld a guilty verdict and fine against a man who stole and sold players' games IDs and online equipment amid growing calls for more concrete virtual property laws.

Read more here.
In a logical extension of the MMO genre, a young Company, Electric Sheep, is helping big customers create a presence inside "Second Life," the popular virtual world in which people can do or build just about anything they can imagine and socialize with others anywhere in the real world.

Electric Sheep can help you out to customize an island, or what in Second Life is called a "sim"--a 16-acre piece of land that users can buy and do with what they like. Now there is a new party in the fight over who owns this virtual IP: Linden Labs (creator or Second Life), Electric Sheep (or some other third party developer), or you. Better read those contracts closely...

Read more here.
There have been rumors and various posts about a firmware hack for the Xbox 360, allowing people to play copied Xbox 360 games. A response from Microsoft has been posted on Gamerscoreblog, a blog of MS Xbox and MS Games employees.

Read more here.
"Major U.S. game publisher and developer Atari has released the paperwork surrounding its latest financials, and embedded within the document is significant news on the firm's $300,000 settlement of the American Video Graphics video game patent lawsuit, a suit which all parties have now apparently settled.

"The American Video Graphics suit was originally filed against game software publishers Electronic Arts, Take-Two, Ubisoft, Activision, THQ, Vivendi Universal Games, Sega, Square Enix, Tecmo, Lucasarts, and Namco in August 2004, and alleged infringement of US Patent No. 4,734,690: method and apparatus for spherical panning.

"The patent in question was originally filed in 1987 by William G. Waller of company Tektronix, Inc., and covers the situation when "a graphics display terminal performs a pan operation with respect to a view motion center to effectuate spherical panning, thereby providing perspective and non-perspective views", in addition to a zoom feature. Taken in the context of video games, this would seem to mean that any 3D game engine that uses camera movement or zooming of any kind relative to a specific object would be liable, a description that encompasses the vast majority of current video games. ..."

Read article:
Gamasutra - Atari, Other Parties Settle Major Game Patent Suit
Not exactly IP news, but interesting nonetheless. Looks like the launch of the PS3 is being delayed...
The Red Cross has begun to take it a little more seriously that game developers' use of the Red Cross emblem has been rampant in years past. The Red Cross recently wrote an open letter to the video game industry, requesting a dialogue to discuss the proper and legal uses of the Red Cross emblem (if any). The letter was addressed to a law firm, but no specific games were mentioned. Rather, the letter mentions that the practice of illegally using the Red Cross emblem has been widespread, and the Red Cross is seeking to curtail such use in the future.
MarketWatch reports that the video game industry grew 6% in 2005, weighing in at $10.5 billion. That's quite a sum of money, given that as reported by Fox, box office receipts for the movie industry were below $9 billion in 2005. Ironically, the market for flagship game consoles and related software shrank, allegedly due in part to the supply shortages of the new Xbox 360.

Other random industry samples for 2005:
I can't wait for next year...
Following up on a previous post, two Hollywood video game store owners and a third man who were charged in December for allegedly pirating video games and installing them on modified Microsoft Corp. Xbox consoles were indicted on Thursday, according to the United States Attorney's Office in Los Angeles.

Read more here.
Well I have been a little slack about posting over the holidays. Hasn't been much news or developments to keep up with in the past month, anyway. To start off the new year we are beginning development of a new Patent Arcade logo. Look for it soon, errr, eventually. If you have any ideas to suggest, let me know.

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