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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, www.BannerWitcoff.com, 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.
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