Activision delivers a knockout punch.
P.S. Products had sued Activision Blizzard for patent infringement based on a design patent owned by P.S. Products directed to the design of a stun gun shaped to look like and be worn as brass knuckles. Activision Blizzard had included a different looking virtual brass-knuckle-stun-gun in Call of Duty, Black Ops II. Litigation ensued. After various motions, and before getting too far along, the court has now granted Activision's motion to dismiss for failure to state a claim.
Two points are critical here.
First, the differences between the two designs:
P.S. Products' Design Patent D561,294:
Second, the design patent depicts physical brass knuckles, whereas the galvaknuckles are only ever rendered as a virtual item in a video game. Activision Blizzard does not manufacture or sell physical Galvaknuckles.
While the differences in appearance certainly weigh in the mind of the judge, the court instead relies heavily on the second point in dismissing the patent infringement claim, stating "[n]o reasonable person would purchase defendants’ video game believing that they were purchasing plaintiffs’ stun gun." The court thereby apparently takes the view that a design patent for a physical item is not infringed by a virtual rendering of that item. However, the court is silent regarding whether the significant differences in the designs of the two items at issue here played any part in its analysis. The court also dismissed (for less interesting reasons) the unfair trade, trade dress, and trademark infringement counts.
Order dated February 21, 2014