Not exactly a video game case, but important the world of Copyrights nonetheless.  The decision everyone has been waiting for it out.  Today the U.S. Supreme Court held that Aereo is equivalent to a cable company, and is performing copyrighted works to the public without paying a license, and therefore they infringe the rights of copyright holders.

The court states:
...we find [Aereo] highly similar to those of the CATV systems in [previous Supreme Court cases]. And those are activities that the 1976 amendments sought to bring within thes cope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act. For these reasons, we conclude that Aereo “perform[s]” petitioners’ copyrighted works “publicly,” as those terms are defined by the Transmit Clause. We therefore reverse the contrary judgment of the Court of Appeals, and weremand the case for further proceedings consistent with this opinion.
Unless there is a legislation change, that's the end of the road for Aereo as we know it.

Cloud service provides, however, can breath a sigh of relief.  The court interprets the term "the public" to apply to a group of individuals acting as ordinary members of the public who pay primarily to watch broadcast television programs.  The court further states:

We have said that it does not extend to those who act as owners or possessors of the relevant product. And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content. See Brief for United States as Amicus Curiae 31 (distinguishing cloud based storage services because they “offer consumers more numerous and convenient means of playing back copies that the consumers have already lawfully acquired” (emphasis in original)). In addition, an entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle.
The court also states, in the Syllabus of the opinion, that in view of "the limited nature of the Court's holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies"

So here's my initial $.02 on this case.

Aereo will have an initial brief dampening effect on technological development, because of the psychological impact that will weigh on technologists as they are developing new technologies. In the back of their minds, they will be thinking “remember what happened to Aereo? They spent all that money and then were shut down. We don’t want that to happen to us.” However, the Court actually goes out of its way in an attempt to prevent the decision from stifling innovation by limiting its decision to the specific technology used by Aereo. The court clearly articulates that cloud service providers in general should remain unaffected by the decision, and the Court further states that in view of "the limited nature of the Court's holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies.” So while there may be an initial delay as technologists do a sanity check on their innovations, technology should continue to advance as usual.

The Supreme Court took a common sense approach by telling technologists not to put form over substance. This is the second time the Supreme Court has held that you can’t manipulate technology to skirt copyright laws. They said it to Grokster, and now they’ve said it again to Aereo. If you’re sitting in a technology development meeting at your company, and someone asks “how can we deploy this technology to avoid paying a license fee?”, I’d think twice about that approach, and make sure that you have legal counsel weigh in on the risks associated with that technology. Despite this, the ruling is not a death knell for technology development, and in fact reinforces the viability of cloud computing solutions in general. However, just as the Supreme Court has done here, technologists must take a common sense approach when designing new products to determine whether those products will run afoul of copyright law.

The case is American Broadcast Cos., Inc., et al. v. Aereo Inc., 573 U.S. __ (June 25, 2014).

Full opinion is here.

Aereo's CEO comments on the outcome here.

More news about the case:

Link 1:

U.S. Patent No. 6,604,008: Scoring based upon goals achieved and subjective elements
Issued August 5, 2003, to Microsoft


The ‘008 patent describes a method for awarding points to a player in a game after the play set and met a goal for performance in the game. The player is permitted to select a goal for a level of performance that he expects to achieve during the game. A goal point counter determines a number of goal-based points that can be awarded to the player if he meets the goals he set. The subjective value of the points differs, but the points are awarded whenever a player performs a non-objective task in the game.


A scoring method and system for determining points in a game. Goal-based points are determined as a function of a player achieving a goal set by the player that is not predefined by the game and are used to determine the player's status in the game, such as whether the player advances to a next level. Subjective style points are awarded if the player performs feats of style that are not necessary tasks of the game, depend upon the type of game, and may include sliding, spinning, jumping, blocking an opponent, passing an opponent, and avoiding obstacles. Objective skill points may be combined with subjective style points and goal-based points. Alternatively, one of these three types of points may be modified as a function of one or both of the other two types of points.

Illustrative Claim:

1. A method of awarding points to a player in a game played using an electronic device that determines points awarded to each player, comprising the steps of: (a) enabling a player to set a goal for performance in the game; (b) determining a number of goal-based points applied by the electronic device for determining a status of the player in the game, as a function of the player's performance in relation to the goal set by the player; and (c) determining subjective points applied by the electronic device in determining the status of the player in the game, as a function of the player's performance as measured against a subjective criterion.

Patent Law Update
June 20, 2014
Computer-Implemented Inventions: Ideas That Are Fundamental Truths And Generically Implemented Are Not Patent Eligible

In a unanimous opinion authored by Justice Thomas on June 19, 2014, the Court held in Alice Corp. v. CLS Bank Int’l, 13-298, that all the patent claims in the case, meaning all method, system and “computer-readable medium” claims, were not patent eligible.

This alert is published by Banner & Witcoff, Ltd. and is intended to provide a summary of significant developments and news related to intellectual property law. Please contact one of our attorneys by phone if we can provide more information about this subject or others related to intellectual property law. Contact information for all of our attorneys is available at

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What do pornography and patents have in common?  Read on to find out!

Today the United States Supreme Court has held, in Alice Corporation v. CLS Bank Int'l, that claims drawn to an abstract idea that merely require generic computer implementation fails to transform that abstract idea into a patent-eligible invention.

Despite its decision, the Court gives surprisingly little guidance one what an abstract idea actually IS. As a result, there will be LOTS of commentary on this case, with a vast number of interpretations. In any event, here is how I read the tea leaves: The Court states that the framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts is a two-step process.  First, you determine whether the claims at issue are directed to one of those patent-ineligible concepts. Second, if so, review the other matter in the claims to see whether the additional elements transform the nature of the claim into a patent-eligible application.   Step two of that process is a search for an 'inventive concept’. — The court states that an inventive concept is an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.  Good luck with that circularity.

And so the search for an inventive concept begins.  The above definition of an inventive concept is not great.  As a result, I predict that courts (and the USPTO) will say something that amounts to: you know it when you see it, sort of like another subject matter that the Court has ruled on in the past (Hint: see Justice Stewart's concurring opinion in Jacobellis v. Ohio, 378 US 184 (1964)).

The full case cite is: Alice Corporation Pty. Ltd. v. CLS Bank International et al., 573 U.S. __ (2014).

U.S. Patent No. 6,500,065: Image displaying method, device, storage medium, and game machine for basketball based game with variable shot success feature
Issued Dec. 31, 2002, to Konami


The ‘065 patent describes a system in a basketball game which features a shot meter allowing the player more control over the shot. If the player stops the meter at a certain spot his shot percentage will drastically increase and almost assure he will make the shot. While the shot gauge can help determine success of a shot, it can also determine the failure of one. If the player presses the button and stops the meter at a poor spot, the shot will be a failure and will not go in. Another factor in making the shot will be the location of the shooter when he takes the shot. If the player takes a shot that is easily makeable, the shot percentage area will be increased so as to make it easier to stop the gauge in that area. The area will decrease if the player is attempting a poorly advised shot.


In a game device for use in displaying an image on a display device to play a video basketball game in response to an operation of a user, a shot image which takes a shot at a goal by a character is displayed on the display device while manipulation timing of the user is monitored to determine whether the shot succeeds or not. On the display device, a gauge is displayed which has a shot success zone and a movable cursor and which is used to determine whether the movable cursor is placed within the shot success zone at the manipulation timing. The gauge is helpful to determine success or failure of the shot.

Illustrative Claim:

1. A method of displaying an image on a display device to play a game of basketball in the form of a video basketball game in response to an operation of a video game player, comprising the steps of: displaying, on the display device, a shot image of taking a shot at a goal by a character selected in the video basketball game; displaying, on the display device, a gauge which is extended from one end to another end and which has a shot success zone, a shot failure zone, and a movable cursor movable from one end to another end of the gauge; moving the movable cursor within the gauge from one end to another end at a predetermined speed; stopping the movable cursor in response to the operation of the video game player; judging whether or not the movable cursor is stopped in the shot success zone to determine success or failure of the shot; visibly displaying a timer gauge on the display device to represent a shooting time which varies with time; and measuring the shooting time whether or not a predetermined time lapses; the shot success zone having a width determined by bars which are displayed in the gauge and which are varied in number in accordance with a degree of difficulty of the video basketball

U.S. Patent No. 6,538,666: Image processing device using speech recognition to control a displayed object
Issued March 25, 2003, to Nintendo Co. Ltd.


The ‘666 patent deals with speech recognition. Whenever a player speaks into a microphone, a converter converts the analog speech into digital speech data, allowing a speech recognizer to recognize a word. The converter can recognize the corresponding word and cause the object on the television to perform an action based on the recognized word if a match of the word is made. The patent also provides for a possibility of delaying action of the character based on time demands. If the player speaking into the microphone delays a command, it will appear in a different color than the immediate action commanded.


An image processing device which changes the way speech recognition results are processed as the program progresses. A video game machine body 10 causes a television receiver 30 to display given images and to output given sounds in accordance with a game program stored in a ROM cartridge 20. When a player enters a speech from a microphone 60, a speech recognition unit 50 recognizes a word corresponding to the speech and sends the result to the video game machine body 10. The video game machine body 10 causes the state of a dialogue partner object displayed on the television receiver 30 to change on the basis of the recognized result received from the speech recognition unit 50. The relation between the recognition result and the control of the displayed dialogue partner object is changed as the program progresses, which gives variety to the game and makes it more amusing.

Illustrative Claim:

1. An image processing device for varying action of a dialogue partner object displayed on a display device in response to a spoken word input from a user through a microphone, comprising: a converter for converting an analog speech signal inputted from said microphone to digital speech data; a speech recognizer for recognizing a word corresponding to the digital speech data converted by said converter; a determiner for determining whether the word recognized by said speech recognizer matches a predefined word to be inputted at that time; a first display control controller for, when said determiner determines match of words, controlling a displayed state of said dialogue partner object to cause said dialogue partner object to perform an action corresponding to the recognized word; a second display controller for, when said determiner determines a mismatch of words, making a determination display on said display device to deliver information on the determination made by said determiner to the user; and wherein said second display controller makes a display on said display device, as said determination display, to show that said dialogue partner object cannot understand the input word.

U.S. Patent No. 6,558,257: Imaging processing apparatus and image processing method
Issued May 6, 2003, to Sega


The ‘257 patent describes a system which can be used in sports games such as baseball where player movement can be tracked by a position indicator. Whenever a ball is hit off the bat the outfielder should react to the ball. If the player can move his character in position to catch the ball, then the invention enacts a sequence which allows the player to catch the ball. If the player misjudges the location of the ball, however, the character is more apt to drop the ball or miss the catch.


In order to realize the smooth display of a fielder's ball-catching movement, determination of a collision between a batted ball and a fence by an easy method, and an accurate hidden-face treatment for polygons which are located very close to each other, virtual area producing means 31 is provided to produce a collision area for collision determination at a position away from the picture of a ball for a predetermined distance, and determining means 32 is provided to determine at which position in the collision area a fielder is located. When it is determined that the fielder is located in the collision area, picture changing means 33 gradually changes the posture of the fielder from a waiting state to a ball-catching state.

Illustrative Claim:

1. A picture processing device comprising: coordinate converting means for projecting a group of polygons represented in a three-dimensional coordinate system on a two-dimensional coordinate system; and hidden face treatment means for determining a display order of the polygon group relative to other polygons projected on the two-dimensional coordinate system, wherein the display order is determined based on dimensions of the depth-directional coordinate values of said three-dimensional coordinate system in a display screen and based on the depth-directional coordinate values of a representative polygon within the polygon group, and wherein the hidden face treatment means includes means for displaying polygons within the polygon group in accordance with a predetermined description order when the display order of the polygon group indicates that the polygon group is to be displayed.
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