This lawsuit has seen a lot of action recently. As previously reported, Innovention Toys LLC (“Innovention”) filed suit against MGA Entertainment Inc., and the retailer defendants (collectively “MGA”), for allegedly infringing U.S. Patent No. 7,264,242, (“the ‘242 patent”) entitled "Light Reflecting Board Game." The district court granted Innovation’s motions for summary judgment of infringement and validity. After a failed Motion for Reconsideration, MGA appealed to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) requesting review of the lower court’s finding of infringement and non-obviousness. The full decision is here and summarized below.

Regarding the issue of infringement, MGA did not argue against the lower court’s interpretation of the claim term “movable,” however, insisted that the court incorrectly compared the term to the allegedly-infringing product – Laser Battle. (As a reminder, “movable” was construed to mean "capable of movement as called for by the rules of the game or game strategy”). Specifically, MGA argued that Laser Battle contained instructions which advised against moving the “Tower pieces” as part of game play or strategy. The Federal Circuit disagreed and determined that the “Tower pieces” of Laser Battle were moveable because “even if the instructions suggest the pieces ‘should’ not so be moved, that capability is nevertheless present.” In this regard, the decision noted that MGA’s argument must implicitly disagree with the construction of “movable” to mean “capable of movement.” The Federal Circuit, therefore, affirmed the lower court’s finding of infringement.

For those drafting or licensing patents, this finding highlights the importance of broadening language in patent claims. For example, reciting a “selectable” item will encompass more items than a “selected” one. For those organizations, such as MGA, that sell commercial products with instructions of intended use, this decision rejects the idea that instructions supplied with a product will negate any properties or capabilities of the product. In short, don’t rely on intended use for determinations of infringement.

MGA faired much better on its appeal regarding non-obviousness. The Federal Circuit disagreed with the district court’s determination that the “Laser Chess” references were irrelevant. The lower court determined the Laser Chess references were non-analogous art since each discloses “an electronic version of the ’242 patent.” The Federal Circuit noted that “even if not in the same field of endeavor, [these references] would nonetheless have been reasonably pertinent to the problem facing an inventor of a new, physical, laser-based strategy game.”

The Federal Circuit also remanded the lower court’s determination that the level of ordinary skill in the art for the relevant patent was a layperson. This is important because a lesser skill “generally favors a determination of nonobviousess.”

On a separate front, the district court (Eastern District of Louisiana) acted on the damages portion of the case. Earlier this year, the district court determined that Innovention could not recover lost profit damages against MGA because its evidence was hearsay, which cannot be relied on for purposes of summary judgment. The rule directed towards summary judgment (Rule 56), however, was recently amended. (click here to see the amended text) Innovention, therefore, filed a Motion for Reconsideration, which the court granted. The district court, however, now must deal with the issues of non-obviousness that were recently sent back down from the Federal Circuit.
Creative Kingdoms, makers of the MagiQuest live-action role-playing game, has filed a complaint at the International Trade Commission (ITC) against Nintendo Co., Ltd. and Nintendo of America, Inc., asking the ITC to prevent Nintendo from importing its Wii gaming system and controller.

According to the complaint, Creative Kingdoms operates a 20,000 square-foot attraction in Myrtle Beach, SC. At this attraction, players pay admission and can buy interactive magic wands to play various games. Marketing literature for MagiQuest bills it as the world’s largest live-action RPG, saying that the wands can trigger 200 effects at the facility, and can remember player progress.

Creative Kingdoms accuses Nintendo’s Wii of infringing U.S. Patent Nos. 7,500,917 (“Magical Wand and Interactive Play Experience”), 6,761,637 (“Method of Game Play Using RFID Tracking Device”), 7,850,527(“Magic-themed Adventure Game”) and 7,896,742(“Apparatus and Methods for Providing Interactive Entertainment”). The complaint accuses the Wii console and remote of infringing various claims in these patents. A sample claim is reproduced below from the ‘742 Patent:

1. A toy wand for use in an interactive play environment, the toy wand
comprising: an elongated body having a substantially tubular shape and distal
and proximal ends, said elongated body substantially enclosing an internal
cavity positioned along an axis extending through said distal and proximal ends;
a first tilt sensor and a second tilt sensor disposed within said internal
cavity of said elongated body, said first and second tilt sensors being arranged
in substantially opposing orientations such that at least one of said first and
second tilt sensors is in an inactive state whenever said elongated body is in a
substantially static position and such that a first particular motion of said
elongated body causes or enables each of said first and second tilt sensors to
be in an active state at least momentarily during a duration of said first
particular motion; a memory configured to store a unique identification
associated with the toy wand; and a wireless transmitter electrically coupled to
said first and second tilt sensors and to said memory and located within said
elongated housing, said wireless transmitter being configured to transmit a
first wireless signal in response to said first motion of said elongated body to
one or more reader devices disposed within an interactive play environment to
activate one or more play effects, said first wireless signal further comprising
data indicative of said unique identification.

Next up will be the ITC’s decision on whether to formally institute an investigation. For those unfamiliar with the ITC, take a look here for a summary.

We’ll keep you posted, and thanks for reading.
Hey everyone, we've been a little behind lately, but good things are in store. The Patent Arcade's own, Ross Dannenberg, will be speaking at Penny Arcade Expo (PAX) East this Friday in Boston, at 1:30 PM. Come on by and listen, ask questions, and generally help stir things up!

Also, we have a new research intern starting this summer, and we plan on posting a major update to our video game patent database by the end of the summer. So stay tuned, good things are coming soon!
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