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Nintendo of America, Inc. v. Elcon Industries, Inc.
United States District Court for the Eastern District of Michigan, Southern Division
564 F. Supp 937
Decided October 4, 1982

Plaintiff Nintendo (at the time) was in the coin-operated electronic video game business, and filed suit against defendant Elcon for copyright and trademark infringement. Defendant is in the business of assembly and sale of coin-operated electronic video games and other video game components.

Plaintiff owns the video game Donkey Kong, and the audio-video presentation of the game is covered by plaintiff's copyright registration. The certificate of copyright registration is prima facie evidence that plaintiff's Donkey Kong game is protected and that the copyright is valid.

Plaintiff extensively promoted and advertised Donkey Kong throughout the United States. Donkey Kong is an original audio-visual game with proper copyright protection of the characters, obstacles, background, and sequence of the game plays. Plaintiff entered into a licensing agreement with the Japanese corporation Falcon, Inc. in September 1981, which authorized Falcon to produce the game Crazy Kong. Crazy Kong was identical or similar to Donkey Kong. The game was prohibited from being imported into the United States and the license stipulated the game could only be sold within Japan.

Defendant imports the Crazy Kong games into the United States without authorization from the plaintiff, which the court found to be sufficient evidence to constitute copyright infringement. Because defendant did not obtain plaintiff's authorization for the publication of the Crazy Kong games, plaintiff cannot lose protection for failing to have a copyright notice on the games.

The court granted plaintiff's motion for a preliminary injunction, finding that the plaintiff showed there was a substantial likelihood of success on the copyright infringement and unfair competition claims.
We are proud to announce that the Patent Arcade has been included in this year's ABA Blawg 100 list of notable legal blawgs.  The Blawg 100 includes only continually updated law blogs.

The Patent Arcade has been in continuous operation for over 10 years, launching on April 5, 2005.  Thanks ABA Journal!  Much appreciated.



More info here.



Williams Electronics, Inc. v. Bally Mfg. Corp.
568 F. Supp. 1274
United States District Court for the Northern District of Illinois, Eastern Division
Decided April 20, 1983

Plaintiff Williams Electronics, a manufacturer of pinball machines, filed suit against defendant for copyright and trademark infringement. Plaintiff’s pinball game is called Hyperball. In the game, the player shoots rolling balls at lightning bolt targets to prevent the bolts from hitting the energy center.

Defendant Bally Manufacturing is a competitor of plaintiff’s machines and has its own pinball machines called Rapid Fire. Bally Manufacturing designed Rapid Fire after its employees saw Hyperball at a trade show in March 1982. Defendant claims Rapid Fire is superior to Hyperball, and in response plaintiff filed suit for false representation and copyright infringement.

Plaintiff provided a certificate of copyright registration for Hyperball to prove the validity of its copyright. The court stated that the game itself is not protectable under copyright law, but certain aspects of the work are protectable such as the audiovisual game components. While defendant made the same type of game as Hyperball, the court stated the game concept is not copyrightable.

The court found that the substantial similarity of Hyperball and Rapid Fire is irrelevant under copyright law. The court held that the elements which plaintiff argued are copyrightable are common to virtually all pinball games and therefore, not protectable. The color, shapes, target placements, ball, grip handles, and lights are not functional elements of the game and are not protected. Additionally, the court found the two games were not substantial similar: Hyperball features thunderbolts, while Rapid Fire features aliens carrying shields.



The court found no substantial similarity between the two games and granted defendant’s motion for summary judgment regarding the copyright infringement. The court denied summary judgment for the Lanham Act claim, holding that there were issues of fact which remained regarding representations between the parties.
Timeplay, Inc. v. Audience Entertainment, LLC
Central District of California
Case No. CV 15-05202

Patentable subject matter under 35 USC 101 has become a primary issue in most patent cases since the Supreme Court’s Alice decision in 2014. Many patents have been invalidated by courts as directed to abstract ideas without significantly more.

In an order dated November 10, 2015, the Central District of California has refused to invalidate a multiplayer video game patent (US Pat. 8,951,124) directed to downloading separate game software to a controller that complements the main game software. Audience Entertainment had argued that the claims were directed to "nothing more than the abstract idea of allowing multiple people to play a game together on a shared display using generic computer and communications hardware." Timeplay responded that their patent "only exists in the field of multi-player video gaming" and that the claims "have core distinguishing features that a family playing Pictionary would never dream were necessary on game night." (Opinion at 7-8). 

Claim 1 of the '124 patent reads:

1. A multi-player game system comprising:
a game server configured to run a game software to facilitate a multi-player game, the game server further configured to provide display signals for displaying the multi-player game;
a display system having primary display means, the display system being configured to provide a primary game display of the multi-player game on the primary display means in response to the display signals;
a plurality of handheld game controllers, each handheld game controller having secondary display means and input means; and
communication controller for enabling communication between the game server and each handheld game controller;
wherein the plurality of handheld game controllers are located in proximity to the primary display means such that the primary display means is visible to game players manipulating respective handheld game controllers; and
wherein the game server is configured to download a game software module to each handheld game controller using the communication controller prior to initiation of the multi-player game, each game software module executable by the corresponding handheld game controller to enable the corresponding handheld game controller to provide a secondary game display on the secondary display means in response to player input received at the input means, wherein the secondary game display is complementary to the primary game display, and to enable participation in the multi-player game by the corresponding game player.
The Court agreed with Timeplay that the claims were not directed to an abstract idea and, further, that the recited claim elements amounted to significantly more than any abstract idea. In analyzing the claims for the presence of an abstract idea, the Court looked to the background section of the '124 patent and noted that the invention was disclosed in the context of multi-player gaming systems. The Court also noted that the presence of generic computer limitations did not itself render the claims directed to an abstract idea. (Opinion at 8).

In assessing the second portion of the Alice framework, whether the claims added significantly more to transform the abstract idea into patent eligible subject matter, the Court focused on the limited scope of the claims as constrained to the realm of multi-player gaming. The Court was convinced that the '124 patent was designed to sole a problem particular to the realm of multi-player gaming, akin to the website branding problem in DDR Holdings. The DDR Holdings case is one of the recent cases to come out in favor of patentability where software inventions are concerned. The Court also noted that the claims recited significant hardware components acting in concert as further support for denying the motion under 35 USC 101. (Opinion at 11-12).

This case is one example of claims that may survive the new and evolving patentable subject matter test in the wake of Alice. Many more cases have been found invalid, but those that survive may serve as useful examples for drafting patentable claims.


On July 23, 2015, an international patent application (WO/2015/107747) was published for Nintendo. The WIPO application was filed by Nintendo back in October 2014. The application is entitled, "Information Processing System and Information Processing Device."

The device may be a sleep tracker, which could double as a video game. The application indicates the device may be able to detect a user's emotions using various sensors.



The abstract of the application is as follows:

This information processing system comprises a portable terminal. The portable terminal detects sensor information for assessing a user's emotions. It would be permissible, as an example, for the sensor information to be sound information which is detected by a microphone, or image information which is captured by a camera. The information processing system assesses the user's emotions on the basis of the sensor information. The portable terminal detects the sensor information in a period when the said portable terminal is in a standby state. As an example, the said standby state is a state wherein a display of the portable terminal is off.

We will continue to watch for interesting updates.


On August 19, 2015, Ars Technica reported that Gearbox Software finally acquired the Duke Nukem franchise from 3D Realms after a long legal battle that started in February 2014.

Gearbox thought it had purchased the rights to the Duke Nukem franchise in 2010 when it took on work for Forever. However, 3D Realms then began advertising a new game called Duke Nukem: Mass Destruction in 2014.

While the settlement terms were not announced, the parties reportedly voluntarily ended the suit, giving ownership to Gearbox.

Ars Technica has more information on this story here.

Sorry for the delay in reporting this one. 
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