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Acceleration Bay LLC v. Electronic Arts Inc.
Docket No. 1:15-cv-00282
U.S. District Court, District of Delaware
Filed March 30, 2015

On March 30, 2015, Acceleration Bay filed suit against Electronic Arts for the alleged infringement of six of its multiplayer video game patents. The patents-in-suit are: U.S. Patent Nos. 6,701,344; 6,714,966; 6,732,147; 6,829,634; 6,910,069; and 6,920,497. These patents read on interacting with broadcast channels to allow individual players to connect with other players and communicate with them throughout the game by using a multiplayer mode.

On June 18, 2015, EA filed a reply brief in support of its Motion to Dismiss. There has been no ruling on the Motion to Dismiss thus far.

The accused products are EA’s games FIFA 15, NHL 15, Tiger Woods PGA Tour 14, Crysis 3, and Plants vs. Zombies: Garden Warfare. The complaint alleges that the accused EA games use Acceleration Bay’s network technology to offers users a multiplayer gaming environment.  

FIFA 15 has a gaming environment allowing individuals gamers to participate in an 11 vs. 11 online gameplay.


NHL 15 allows individual players to participate in its 5 vs. 5 online gameplay with its Online Team Play mode.


Tiger Woods PGA Tour 14 offer a multiplayer gaming environment and connects up to 24 individual players through its Connected Tournaments function.


 Crysis 3 offers a multiplayer mode using a peer-to-peer network for up to 12 individual players. Crysis 3 allows includes a 6 vs. 6 team play.


Plants vs. Zombies: Garden Warfare offers a multiplayer gaming environment connecting up to 24 online players.



We will continue to provide updates as the case progresses.
Gametek LLC v. Facebook, Inc. et al.
United States District Court, Southern District of California
Case No. 3:12-cv-00501, Filed February 28, 2012

On July 2, 2012, Plaintiff Gametek filed a notice of voluntary dismissal against Defendants Facebook, Inc.;  Facebook Operations, LLC; Facebook Payments, Inc. and Facebook Services, Inc.

On December 7, 2012, the Court dismissed the claims against Defendants Cie Games, CrowdStar, EA, Funzio, Zygna, Digital Chocolate, 6Waves, and RockYou.

This case was terminated on April 8, 2014, following a settlement conference. All claims and counterclaims were dismissed with prejudice between Plaintiff Gametek LLC and Defendant Big Viking Games, Inc.

Gametek filed suit against 21 companies including Facebook, Electronic Arts, and Zynga. Gametek alleged the companies infringed its patent for virtual currency and payment system incorporating items bought and used in-game. Gametek sought damages and injunction through this lawsuit. The patent-in-suit was U.S. Patent 7,076,445.

The original post can be found here.
Virtual Gaming Technologies, LLC v. Activision Blizzard, Inc. and Konami Gaming, Inc.
Eastern District of Texas, Cases No. 2-15-cv-02074 and 2-15-cv-02075
Filed December 14, 2015

Plaintiff Virtual Gaming accuses Activision, Konami, and over a dozen other giants in the gaming industry of directly infringing and inducing customer infringement of Patent Nos. 5,860,862 (“Interactive System Allowing Real Time Participation”) and 6,193,610 (“Interactive Television System and Methodology”). The patents deal generally with interfaces that deliver score information about one game to a viewer who is himself playing another game—for example, delivering live football game data to a person participating in a fantasy football league. The rights to these patents were acquired by the plaintiff on October 29 of this year, and both patents claim a priority date of January 5, 1996, meaning they will likely expire next week if no term extensions have been granted.


Exemplary claim 1 of the ‘862 Patent recites:
1. An interactive game system comprising:
means for generating real time score values indicative of performances of players involved in an event;
means for conveying to each participant at least one of the real time score values of the players; and
means for enabling selecting at least one player to comprise a team for each participant of the interactive system based on the real time score values of the player.
Exemplary claim 1 of the ‘610 Patent recites:
1. An interactive game system comprising:
a controller for generating real time score values indicative of performances of players involved in an event;
an interactive device for displaying video information to a participant of an interactive game based on the event; and
a communication network coupling said controller and said interactive device such that the real time score values are conveyed to the participant.
The accused games include Activision’s “NASCAR The Game: Inside Line” and Konami’s “Pro Evolution Soccer 2015,” which display score data and team selection interfaces such as those below to a player.





Interestingly, the complaints devote dozens of paragraphs to a preemptive defense of the ‘862 and ‘610 Patents’ patentability under the post-Alice regime. For example, the plaintiff asserts that the claims at issue involve no abstract idea or fundamental business practice, that they require use of a computer to infringe, that they solve a technological problem rather than an entrepreneurial one, and that they do not preempt practice in an entire field of endeavor. The plaintiff also asserts that means-plus-function claims are inherently immune to invalidation under 35 U.S.C. 101 because the means itself cannot be an abstract idea.

We will continue to monitor this case and report any interesting developments.

Thanks to Daniel Douglas for preparing this case note.
Spry Fox LLC v. Lolapps, Inc.
Washington Western District Court
Case Number: 2:2012cv00147

Following a court dismissal of LOLApp’s motion to dismiss, which included the court noting that copyright protection of video games extended to the elements of plot, theme, dialogue, mood, setting, pace and character, and, further stating that there was at least a question of fact regarding whether LOLApps had taken these underlying elements from Spry Fox (but perhaps expressed them using different characters), this case was settled out of court for an undisclosed sum. 

Case closed - sorry for the delay.

FEDERAL CIRCUIT HEARS ORAL ARGUMENTS IN MCRO V. NAMCO BANDAI
Will Patent-Eligibility of Computer Software Survive?

By Ross A. Dannenberg

In the wake of the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank, courts have been struggling to define the line between abstract idea and patent-eligible invention. The Federal Circuit on Friday, December 11, heard oral arguments in McRO Inc. v. Bandai Namco Games America Inc. et al., a case that has the potential to make that line a bit clearer. If you’re already familiar with the posture of this case, you won’t miss anything if you skip to Section 2, infra.

Case History

McRO, Inc. (d/b/a PlanetBlue), was founded in 1988 by inventor Maury Rosenfeld (who was in attendance at the arguments), a special effects designer whose credits include “Star Trek: The Next Generation” and “Pee Wee’s Playhouse.” Rosenfeld has two patents on technology for automatically animating lip synchronization and facial expressions of animated characters, a technique commonly used in video game development. Many video game developers previously hired PlanetBlue to do the animation and lip synchronization. However, McRO filed suit against various developers in December 2012, after they allegedly started using the technology on their own without paying a license fee. 

The patents in suit are 6,307,576 and 6,611,278.  A representative claim from the ‘278 patent reads:
1. A method for automatically animating lip synchronization and facial expression of three-dimensional characters comprising:
obtaining a first set of rules that defines a morph weight set stream as a function of phoneme sequence and times associated with said phoneme sequence;
obtaining a plurality of sub-sequences of timed phonemes corresponding to a desired audio sequence for said three-dimensional characters;
generating an output morph weight set stream by applying said first set of rules to each sub-sequence of said plurality of sub-sequences of timed phonemes; and
applying said output morph weight set stream to an input sequence of animated characters to generate an output sequence of animated characters with lip and facial expression synchronized to said audio sequence.
McRO’s 16 cases were consolidated before U.S. District Judge George H. Wu of the Central District of California. On September 22, 2014, Judge Wu held that in view of the Supreme Court’s recent decision in Alice barring patents on computer-implemented abstract ideas, McRO Inc.’s animation patents merely describe an automated process to the manual animation methods studios previously used. Judge Wu held that the novelty in McRO’s idea was using rules to automate the selection and morphing of single animation frames tied to a specific sound, changing a character’s lips from closed to open to show the sound “moo,” for example. However, the patents only discussed the automated rules “at the highest level of generality,” according to Judge Wu. The users must come up with their own rules, according to Judge Wu, while the provided rules were mere examples and only partially complete. Judge Wu stated “this case illustrates the danger that exists when the novel portions of an invention are claimed too broadly.” McRO appealed to the Federal Circuit.

Federal Circuit Oral Arguments

Circuit Judges Reyna, Taranto and Stoll heard oral arguments in this matter, with Judge Taranto being the most vocal of the three. The most telling portions of the oral argument are the questions posed by the judges, which we address below.

Judge Taranto’s questions concentrated on the differences between the technology at issue in this case and the technology at issue in previous cases such as Flook, as well as various comparisons to other technologies that use rules-based decision-making, such as autopilot software and facial recognition software. Judge Taranto was also concerned with how to determine when the production of a physical item (which the court considers lip-synched animation to be) can be an abstract idea as a whole, versus when the production of the physical item merely uses an abstract idea. The supposition is that it’s hard to prove that something is merely an abstract idea when it results in a physical item being produced. Judge Taranto also questioned whether the genus of a species is always abstract, or whether the genus itself can also be patent-eligible.

Judge Reyna asked multiple questions regarding whether the district court erred procedurally. First, Judge Reyna posed a question regarding whether Judge Wu erred by stripping out portions of the claims found in the prior art, or whether claims must be considered as a whole when determining eligibility under 35 U.S.C. § 101. Judge Reyna also seemed concerned that Judge Wu added a third step to the Supreme Court’s two-step process articulated in Alice.

Judge Stoll was the only judge who appeared to be interested in how to improve patent-eligibility determinations under Section 101. Judge Stoll asked both parties what test could be used to perform subject-matter eligibility determinations that comports with the Alice case, while also asking the appellant (McRO) what test the district court should have used based on the McRO’s argument that the district court erred in the first place. Judge Stoll was also interested to hear what the appellee (Namco Bandai) thought would need to be added to the claims—short of claiming every actual rule needed to perform automated lip synchronization and animation—before the claims would be considered subject matter eligible under Section 101.

This case is important because of the level of detail with which the computer software is claimed in the patent. The software is claimed using descriptive language to recite a specific method (or algorithm) the software performs to automate the animation and lip synchronization. Most patent practitioners agree that the level of detail used in the claims in the McRO patents is commensurate with the level of detail used in hundreds of thousands of issued software patents. Indeed, even the appellee admitted during oral arguments that the claims at issue in this case are more “dense” than claims typically challenged under 35 U.S.C. § 101. If the Federal Circuit affirms the district court based on the level of detail with which the invention is claimed in this case, then the validity of some of those other patents is more easily called into question. However, those patents remain valid until shown otherwise in court or through a USPTO inter partes review proceeding.

Reading the Tea Leaves

Despite this prospect, in view of the overall tone of the questions, the panel seems more likely than not to reverse the district court’s holding of invalidity under Section 101, and remand this case for further proceedings to reassess 101 eligibility using the correct standard, and/or also to determine infringement and validity under 35 U.S.C. §§102-103 (novelty and obviousness). There were several unanswered questions regarding issues such as the incorrect application of Supreme Court precedent in Alice, stripping claims of “prior art” subject matter before performing the analysis, and adding an improper third step to the Supreme Court’s two-step analysis to lead one to believe that the court is likely to do otherwise.
Cherdak v. Nintendo of North America, Inc.
United States District Court, Eastern District of Virginia
Case No. 2:15-cv-366
Filed August 14, 2015

Plaintiff Erik B. Cherdak is a pro se applicant who sued Nintendo of America on August 14, 2015. Plaintiff sued Defendant for the alleged past infringement of his Patent Nos. 5,343,445 and 5,452,269. The patents-in-suit, entitled “Athletic Shoe with Timing Device,” cover a device for measuring the amount of time an athletic shoe is in the air, similarly known as a pedometer.

Below is an exemplary claim from the ’445 patent:

1. A method for indicating hang time off the ground and in the air during a jump by a person wearing an athletic shoe, said method comprising the steps:
(a) sensing, within said shoe, when said shoe leaves the ground during said jump;
(b) sensing, within said shoe, when said shoe returns to the ground at the end of said jump; and
(c) activating a hang time indicator on said shoe during the time interval between said shoe leaving and returning to the ground as sensed in steps (a) and (b), respectively, said indicator providing an indication of hang time in a manner perceptible to said person.

The ‘445 patent issued August 30, 1994, and the ‘269 patent issued September 19, 1995.  The filing dates for these patents were prior to June 8, 1995, when the 1994 Uruguay round of the GATT changed the rules for calculating patent term. Under the old rules, the patents-in-suit expired 17 years from the date of issue or 20 years from the earliest non-provisional priority date, whichever date is greater. Therefore, absent mitigating circumstances these patents expired July 6, 2013.

The accused products are the Nintendo DS “Personal Trainer: Walking” line, which includes a pedometer for tracking steps and other activities. The device can be worn on shoes or other articles of clothing.  The accused product also contains software for operating and controlling the device to allow users to set personal health goals.

In the complaint Plaintiff is asking for royalties for the alleged past infringement by Nintendo.



It is worth mentioning that Erik Cherdak has filed approximately 40 lawsuits for patent infringement of these two patents over the last ten years.


We will watch for any interesting developments in this case.
Amanda Lewis v. Activision Blizzard, Inc
Ninth Circuit, Case No. 13-17391
Appeal Filed 11/21/2013
From NDCA Case No. 12-cv-01096

Back in November 2010, a former World of Warcraft game master sued Blizzard alleging copyright infringement based on use of her voice with the adorable baby murlocs in the game. According to the facts presented in that case, Blizzard had sent an email to all GMs inviting them to audition for vocal parts in July 2005. Around 120 GMs, including the plaintiff signed up and attended two recording sessions with Blizzard sound engineers. Later, the plaintiff discovered that her recordings were used in baby murloc sound effects (and also a song for when the baby murloc breaks into dance). The plaintiff contended that the recordings were outside the scope of her employment, that she owned copyright in them, and that they were used without authorization in the game.
mrglgllrlrlglgrgrglgl
In 2012, the Northern District of California ruled in Blizzard's favor. The court in that case pointed to the employee handbook for Game Masters, which included this portion:
Game Masters are customer service specialists with expert knowledge of the game who are [] present as characters within World of Warcraft’s epic fantasy setting to provide assistance and guidance to players while also coordinating world functionality. In this capacity, GM’s serve as the direct link between Blizzard and its customers. Additionally, GM’s are responsible for in-game customer support, helping manage our online community, and assisting with the creation of content during the ever ongoing development of the game
(emphasis added). The fact that the plaintiff was paid for her sound recording audition carried significant weight with the court as well as that the plaintiff knew that the recordings would be used in promoting the game. The court held that the work was a work made for hire and that copyright solely belonged to Blizzard, and rendered summary judgment in Blizzard's favor. The court also awarded attorney's fees to Blizzard.

Now the case is on appeal to the Ninth Circuit. Per Law360 (subscription required) and an audio recording of the hearing, the plaintiff argues that the lower court misinterpreted the GMs job responsibilities and that the quoted portion of the handbook is in direct contradiction to other portions of the handbook. The plaintiff continues to argue that the sound recordings were made outside the scope of her employment and thus should copyright should belong to her. Blizzard argues that her job responsibilities as stated involved content creation and that the lower court's decision was sound.

The issues in this case were made a lot easier for Blizzard due to their employee handbook. It is a good practice to ensure that content included in your game was made by employees acting within stated job responsibilities, or subject to an express work for hire agreement / copyright assignment.

We will continue to watch this case for interesting developments.


It has been a while since we wrote about Worlds, Inc. and their patents directed to receiving position information for avatars in virtual spaces. When we last wrote, it appeared as though their lawsuit against Activision was dead in the water due to missing out on a huge chunk of potential damages due to late correction of a priority claim. However, the lawsuit continues as Worlds seeks to recover at least damages since the 2013 correction of the patent and through the likely expiration of the patent earlier this year. A claim construction order issued in that case on June 26, 2015.

However, Activision is not the only party currently engaged with Worlds. Bungie filed five Inter Partes Review requests with the USPTO in May and June of this year arguing that the same Worlds' patents asserted against Activision were invalid. The five patents are:

  • 8,082,501
  • 8,145,998
  • 7,493,558
  • 7,945,856
  • 7,181,690

The USPTO has now issued decisions instituting each of the IPRs. That is, the USPTO has determined that Bungie has demonstrated a "reasonable likelihood" that they would prevail on at least one of the claims challenged in each patent.

For example, in the decision regarding the '501 patent, the USPTO stated that Bungie had shown that the claims were either anticipated or obvious over several documents, including a patent from 1993 that was seen to disclose all the limitations recited in the independent claims.

One issue raised by Worlds in response to the IPRs was that Activision was an unnamed real party in interest due to Bungie's collaboration with Activision on Destiny. This could have led to dismissal of the IPR requests as improper. However, Worlds did not convince the USPTO that Activision had control over the proceedings.

For reference, claim 1 of the '501 patent recites:

1. A method for enabling a first user to interact with other users in a virtual space, each user of the first user and the other users being associated with a three dimensional avatar representing said each user in the virtual space, the method comprising the steps of:
customizing, using a processor of a client device, an avatar in response to input by the first user;
receiving, by the client device, position information associated with fewer than all of the other user avatars in an interaction room of the virtual space, from a server process, wherein the client device does not receive position information of at least some avatars that fail to satisfy a participant condition imposed on avatars displayable on a client device display of the client device;
determining, by the client device, a displayable set of the other user avatars associated with the client device display; and
displaying, on the client device display, the displayable set of the other user avatars associated with the client device display.
We will continue to report on any interesting developments.


McRo, Inc. v. Bandai Namco Games America Inc.
Oral Arguments pending at the Court of Appeals for the Federal Circuit

Filed October 27, 2014
Case No. 15-1080

This case was submitted by plaintiff McRo, Inc. to the Court of Appeals for the Federal Circuit following the decision in favor of defendants. Some of the defendants include Bandai Namco Games America Inc., Sega of America Inc., and Electronic Arts Inc.  Oral arguments are this Friday, December 11, 2015.

The case was originally filed in the United States District Court for the Central District of California (case no. 2:12-cv-10322), on December 4, 2012. The patents-in-suit, 6,307,576 and 6,611,278, are entitled, "Method for Automatically Animating Lip Synchronization and Facial Expression of Animated Characters."

Below is an exemplary claim from the '278 patent:

1. A method for automatically animating lip synchronization and facial expression of three-dimensional characters comprising:

obtaining a first set of rules that defines a morph weight set stream as a function of phoneme sequence and times associated with said phoneme sequence;

obtaining a plurality of sub-sequences of timed phonemes corresponding to a desired audio sequence for said three-dimensional characters;

generating an output morph weight set stream by applying said first set of rules to each sub-sequence of said plurality of sub-sequences of timed phonemes; and

applying said output morph weight set stream to an input sequence of animated characters to generate an output sequence of animated characters with lip and facial expression synchronized to said audio sequence.

McRO alleged defendant Bandai infringed the patents-in-suit by using the claimed methods for automatically animating lip synchronization of three-dimensional characters.

The defendants argued McRO’s lip-sync animation patents claimed only an abstract idea under the U.S. Supreme Court’s recent Alice decision, and therefore the patents are invalid. McRO argued in the appeals court that the patents-in-suit were not invalid under the Alice case. McRO stated its patents claim a 3-dimensional lip-sync animation. McRO argued that the steps in the patent should be taken as a whole to determine patentability, rather than individually.

 The Alice case held that a patent is valid if the invention improves existing technological processes.

We will be attending oral arguments at the court, and will report any significant updates.

Secure Axcess, LLC. v. Nintendo of America Inc.
United States Court of Appeals for the Federal Circuit
Filed December 2, 2015
Case No. 2015-1971
  
As you may recall from an earlier post, Secure Axcess had filed suit against Nintendo of America alleging infringement of U.S. Patent 6,522,309, entitled “Multiscreen Personal Computer Display Method and Apparatus.” The Western District of Washington entered a judgment of non-infringement in favor of Nintendo.

The ‘309 patent is entitled, “Multiscreen Personal Computer Display Method and Apparatus,” and it relates to a computer with multiple display capability. A user can simultaneously display documents using a singular processed video data signal source, on two or more screens. The '309 teaches a device termed a "translative video adapter", or TVA, which is used on two or more screens to view and edit documents simultaneously. Secure Axcess asserted that the Nintendo DS infringes the ‘309 patent with its dual-screen. As previously reported, the district court found that Nintendo did not infringe based on a claim construction that the TVA had to be a separate device.
'309 Patent, Figure 1
Secure Axcess has now filed an appeal with the Federal Circuit requesting the ruling be vacated. Secure Axcess is primarily challenging the claim construction used by the district court. Secure Axcess is arguing that the court improperly interpreted the claims to include limitations that do not appear in the body of the claims, and are otherwise inconsistent with Patent Number 6,522,309, specifically “in holding that 1) the TVA must be a ‘detachable’ device; 2) the TVA does not implement bidirectional communication, and 3) the TVA only supports conversion of ‘analog’ video signals when construing the ‘309 patent claims.” Opening Brief of Plaintiff – Appellant at 3, Nintendo of America v. Secure Axcess, LLC., No. 15-1971 (Fed. Cir. Dec. 2, 2015).

We will keep you updated regarding future developments.

Thanks to Josh Davenport for his assistance in preparing this update.
Kramer Manufacturing v. Andrews
United States Court of Appeals for the Fourth Circuit
Decided February 6, 1986
783 F.2d 421 (4th Cir. 1986)

Plaintiffs Kramer Manufacturing brought suit against defendants Andrews for copyright infringement and trademark infringement in violation of the Federal Trademark Act.

Plaintiffs alleged defendants copied its computer program entitled, “Hi-Lo Double Up Joker Poker.” Plaintiffs' game is an electronic card game based on draw poker. Defendants manufacture similar coin-operated video games.

In their complaint filed on June 6, 1983, plaintiffs alleged that defendants infringed its copyright by distributing copies of the Hi-Lo Double Up Joker Poker game. The allegations included copyright infringement of the computer program itself and the audiovisuals.

The district court found for the defendants because it said that the flashing card feature in plaintiffs’ pre-existing poker game was not copyrightable and therefore, plaintiffs were not entitled to copyright protection. While the plaintiffs did not place a proper copyright protection notice on their product, the court held that the omission did not forfeit plaintiffs' rights. Because Kramer registered its copyright within five years of publication, the district court's finding that the plaintiffs did not make a reasonable effort to add proper copyright notice is erroneous.

Additionally, plaintiffs alleged that defendants violated the Federal Trademark Act by falsely designating the origin of the defendants’ version of the game. Specifically, plaintiffs argued that defendants copied the game console and the artwork on the glass panel displaying the video graphics. The Court of Appeals found evidence of intentional and direct copying sufficient to establish a prima facie case of secondary meaning. Therefore, the burden of persuasion shifted to defendants, to which they did not offer rebutting evidence.


The lower court found for the defendants and the judgment was vacated by the Court of Appeals. The Court of Appeals found evidence of both copyright and trademark infringement by defendants.
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