Damion Perrine v. Sega of America, Inc., et. al.
U.S. District Court, Northern District of California
Case No. C: 13-1962 MEJ, Filed April 29, 2013

This is a recently filed case in the Northern District of California seeking status as a class action to bring suit against publisher Sega of America, Inc., ("Sega") and developer Gearbox Software, L.L.C., ("Gearbox") in response to the February 12, 2013, release of Aliens: Colonial Marines.  The game in question was marketed as the canon sequel to James Cameron's 1986 film Aliens and garnered much media attention up to its release.  The complaint alleges that Gearbox and Sega falsely represented the quality of the game at industry trade shows, media preview events, through deceptive trailers and screenshots.  These alleged misrepresentations began in June 2011 and continued until the game's release.  Perrine goes on to allege that even though trailers and screenshots bore watermarks stating that the game was still a "Work in Progress" that it was not reasonable to expect the game to not live up to at least the standards shown therein. 
The complaint puts forth six causes of action: violation of California's Consumer Legal Remedies Act (Cal. Civ. Code §1750); violation of California's Unfair Competition Law (Cal. Bus. & Prof. Code §17200); violation of California's False Advertising Law (Cal. Bus. & Prof. Code §17500); breach of express warranties; fraud in the inducement; and negligent misrepresentation.  The complaint goes on to allege that these representations were deceptive and intentionally done to induce purchase of the game.  The complaint also states that Sega and Gearbox knew that they made representations of quality and features that they either knew they could not or would not live up to.  The suit seeks relief in the form of a declaratory judgment stating that Sega and Gearbox violated the listed statutes and that their actions constituted fraud in the inducement and negligent misrepresentation.  Furthermore, Plaintiff, on his own behalf and on behalf of the class, seeks the full scope of damages available as well as an injunction against Sega and Gearbox "as necessary to cease Defendants' violations" of the various statutes that have allegedly been violated.  Lastly, Plaintiff seeks restitution in the form of disgorgement of all revenue derived from sales of Aliens: Colonial Marines.

On May 2nd, 2013, the magistrate judge denied class certification without prejudice for failure to comply with California Civil Local Rule 7-2(a).  However, if Plaintiff does re-file and receive class certification, this case could have large ramifications for the videogame industry.  The industry thrives on the press cycle established via trade shows and preview coverage granted to various media outlets.  If Sega and Gearbox are found in violation of these claims, it could set a precedent for filing class action suits against any developer or publisher who releases a game that is not what consumers were expressly led to believe they were going to receive upon buying.  This could lead to massive changes in the marketing of games.  Developers would have to be more careful in regards to what information they release, and smaller developers may opt to not release as much press footage for fear of litigation.  This could have a detrimental effect in that smaller games might not receive as much (or any) attention, thus adversely affecting their potential profits.

While not strictly an IP case, its close enough that we will monitor it and provides updates regarding major developments.

U.S. Patent No. 7,090,577: Race game system and method of entry
Issued Aug. 15, 2006, to Sega


The ‘577 patent describes a racing game which allows players to join and leave the game at will without affecting the other players’ experience. The racing game is an endurance race where many vehicles run for long periods of time. Since the vehicles are continuously running on the track, a player can select a vehicle and join a race in progress. Players receive points based upon the number of cars they can pass. Thus, since points are awarded based on personal achievements the player is not hindered by other players joining mid-game. Whenever a race is completed the players are ranked based upon their finishing positions. A player who wins a race is considered a “survivor” and will keep his place in the race whenever a new batch of competitors joins. Players who finish in other positions may be kicked from the server because of their poor performance.


An object is to provide a free-entry type of race game apparatus wherewith a player can join at any time. This is a race game that simulates an endurance race in which many vehicles run for a long period of time. The vehicles are continually running on the track (ST 1), from which number a player selects any vehicle at will (ST 3) and joins the race in progress (ST 4, 5). The game is terminated on the basis either of a pass count indicating the number of cars passed (or passed by) (ST 6), or a limiting time (ST 7).

Illustrative Claim:

1. A game system comprising: game execution means for enabling a plurality of players to join together and compete in a common game; a pseudo game for permitting other players different from said plurality of players to join the common game after the common game has started so as to experience the same game session as the plurality of players by playing a substantially identical game session, wherein scores of said other players do not affect a score ranking of said plurality of players competing in said common game; player setting means that, when competition of a certain scope in the common game has been concluded, reflect a plurality of competition results of said plurality of players for said common game and automatically set a new plurality of players which includes said other players and a number of said plurality of players selected based upon the plurality of competition results; and game perpetuating means for causing said automatically set plurality of players to automatically participate in said common game and for perpetuating said common game; wherein said player setting means include judgment means for determining a finish of said certain scope of said common game, determination means for determining results of said common game when said finish has been determined, and setting means for setting said new plurality of players for said common game after comparing the results of said common game against predetermined conditions.

CLS Bank v. Alice Corp. was a deeply fractured en banc decision of the Federal Circuit, in which they couldn't agree on anything.  Seriously.  The per curiam decision of the court was one paragraph affirming the lower court's decision finding the claims ineligible subject matter, but they couldn't agree on why.  There were many concurring, concurring in part, dissenting, and dissenting in par opinions, each expressing a different view as to the role that 35 USC 101 should play in patent subject matter eligibility and invalidity analyses.  But none of the opinions garnered a majority of the court (5 of 10 was the max that signed on to any single opinion).  

So how will all of this affect video game patents?

The answer, at least for now, is not at all.  For now.  The USPTO has stated, in response to the CLS Bank decision, that "[a]t present, there is no change in examination procedure for evaluating subject matter eligibility."  The USPTO plans on giving the opinion further study to determine whether any further prosecution guidance is warranted.  

Most people (including this author) expect the Supreme Court to take this case and piece back together the fractured jurisprudence regarding 35 USC 101.  We'll have to wait and see...

U.S. Patent No. 7,090,582: Use of multiple player real-time voice communications on a gaming device
Issued Aug. 15, 2006, to Microsoft


The ‘582 patent provides a way for players, during online gaming, to communicate with other players. The invention establishes a system where players can select an opposing player or teammate with which to communicate. The player can then send a personal message to the other player and enter into a private chat. This allows the two players to communicate solely with each other and not be overheard by the other players. This invention also cuts down on the nuisance of the other players since the player can easily block any player who is offensive or disrespectful toward the player.


A game console capable of communicating with other game consoles over a link or network is provided with a headphone and microphone for each player who will engage in voice communication. Verbal communications directed to one or more other players are converted to pulse code modulated (PCM) digital data and are encoded and compressed in real-time, producing data packets that are transmitted to another game console. The compressed data packets are decompressed and decoded, producing PCM data that are converted to an analog signal that drives a headphone of the intended recipient. Players can selectively mute voice communications to and from a specific other player. The PCM data can be encoded in a round-robin fashion that reduces the number of encoders required. A predefined level of computing resources is used for voice communication to avoid aversely affecting the quality of game play.

Illustrative Claim:

1. A method for encoding a plurality of audio channels during play of an electronic game, using at least one encoder, but fewer encoders than audio channels to be encoded, each encoder encoding audio signals in an active audio channel and producing corresponding data packets for transmission to at least one recipient participating in the play of the electronic game, comprising the steps of: (a) creating a round robin history of the audio channels that have been encoded by the encoders during successive processing intervals; (b) if more than one audio channel per encoder are simultaneously active, selecting an audio channel to encode with each encoder based upon the round robin history and on the audio channels that are then active, so that an audio channel that is active will be skipped and not encoded more frequently than every other processing interval; and (c) updating the round robin history for each processing interval to indicate each audio channel that was encoded during the processing interval.

It will be interesting to watch as Congress begins to hold hearings to reform copyright law.  The Verge recently posted a couple informative articles on the topic.  There will likely be much debate over a wide range of topics.  If its anything like the negotiations that let to the Copyright Act of 1976, I look forward to seeing what the Copyright Act of 2023 looks like...

U.S. Patent No. 7,094,153: Virtual space control method
Issued Aug. 22, 2006, to Sony


The ‘153 patent describes a video game system where the camera viewpoint is changed depending on the character’s movement. Under this invention, the player has full control over his character. Whenever that character completes a certain objective, the camera is programmed to change and reflect a different viewpoint so that the player has a better view of the action at hand. The camera changes, not the view of the character, but of the whole world in orientation with the head of the character.


A program execution apparatus moves the fixation point in a virtual space in response to a change in the direction of a prescribed part of a virtual character in the virtual space. When the program execution apparatus moves the fixation point in a virtual space in response to a change in the direction of a prescribed part of a virtual character in the virtual space, it causes the occurrence of a prescribed object in the virtual space, thereby achieving a video game having a high level of reality and an improved level of entertainment.

Illustrative Claim:

1. A virtual space control method comprising the steps of: changing an orientation of a prescribed part of a virtual character in a virtual space; changing a screen image in response to the change in orientation of the prescribed part, wherein the screen image represents a virtual field of view of the virtual space defined by a viewpoint other than a viewpoint of the virtual character and including a whole image of the virtual character; moving the virtual character in the virtual space; and detecting an occurrence of a prescribed event, wherein the step of changing the orientation includes a step of changing the orientation of the prescribed part in response to the occurrence of the prescribed event, wherein the step of changing the screen image has a step of changing the screen image in response to the movement of the virtual character and to the change in orientation of the prescribed part, and wherein the prescribed event is selected from a plurality of events occurring in the virtual space.

U.S. Patent No. 7,097,559: Game system and method for assigning titles to  players based on history of playing characteristics
Issued Aug. 29, 2006, to Konami


The ‘559 patent comprises a performance determination unit that determines the order of finish of the players each time an online game is completed. At the end of each game, the system tallies who won and who lost. With this information, the system then ranks all the players according to their in-game performance. The players’ information is then stored on the server so that running totals of wins and losses as well as other statistics are constantly kept. This allows players to then be matched up based on certain criteria (winning percentage, completeness of levels, etc.) and can provide players with competitive teams.


The CPU 161 of the video game apparatus comprises a performance determination unit 161b that determines the order of finish of the players each time a game is completed, a parameter calculation unit 161g that calculates parameters indicating the characteristics of each player in playing games based on the game history data stored in a history storage unit 162b described below and a title assigning unit 161h that assigns a title applicable during games to each player based on the calculated parameters, and the RAM 162 comprises a history storage unit 162b that stores past player game history data for each player, and a title storage unit 162c that associates the titles assigned by the title assigning unit 161h with the players and stores them.

Illustrative Claim:

1. A recording medium which stores an executable game progress control program that controls progress of a game played by a plurality of players while reflecting the game progress on game screens, said game progress control program being configured to enable a video game apparatus to function as: history storage means for storing past game history data for each player, parameter calculation means for calculating, based on the game history stored, parameter values for game playing parameters that indicate a plurality of game playing characteristic actions of each player in playing the game wherein ranges of the parameter values for respective ones of the game playing parameters are game playing parameter dependent and differ from one another, level determination means for converting the parameter values to level values based on conversion criteria specific to respective ones of the game playing parameters and which differ from each other, title assigning means for assigning titles applicable during games to the players based on relative levels of the level values converted from the parameter values of each player, said titles being indicative of the game playing characteristic actions of each player in playing the game, title storage means for associating the titles assigned with the respective players and storing the associated titles, and display means for displaying, on the game screens, the titles associated with respective opposing ones of the plurality of players.

Well folks, its almost that time of year again.  Summer.  And we need a Research Intern.

If there are any 1L's or 2L's (or recent law school grads) looking for something to do this summer, the Patent Arcade is looking for a Research Intern to assist with researching and writing about developments in video game and IP law.  Anyone with a keen interest in intellectual property and video games may apply.  One caveat: for reasons I won't go into, we can only consider candidates who are NOT eligible to take the patent bar.  Candidates must have at least completed a first year of law school.  Preference will be given to candidates local to the DC area, but working remotely is not out of the question for the right candidate.  If interested, please send cover letter, resume, writing sample(s), and transcripts to the attention of Ross Dannenberg to dcjobs (at) bannerwitcoff (dot) com.  This is an unpaid position.
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