Visit BannerWitcoff.com
Hello Patent Arcade readers. Something a little different today. An old friend from law school has published his own book:

What They Don't Teach You in Law School | How to Get a Job: The Six-Step Process for Landing a Great Legal Job Even if You Don't Know Where to Start
February 13, 2018, by Adam Gropper

Law school doesn’t teach you how to get a job. This Book Does. It arms you with a fresh perspective from students who landed great legal jobs. These personal, enlightening stories and the insight they reveal form the foundation of a straightforward six-step process to take control of your career path and professional advancement, starting in law school, and create multiple job opportunities. You'll quickly learn how to: • Create an entrepreneurial approach to your career planning. • Be seen by potential employers as integral to achieving their objectives. • Build your brand to get the job you want with the employer you want. In an easily relatable fashion, this book shares nearly 20 years’ worth of experience and advice (including guidance and feedback from all types and sizes of employers) that has helped the author’s clients secure their dream legal job. Now, this book and its easy to implement, proactive approach can help you too!



If you've been struggling with getting where you want to be in the legal profession, give it a read and let us know what you think.

Get your copy today! (Paperback)

Kindle edition.

Other Books by Adam Gropper:

Making Partner: The Essential Guide to Negotiating the Law School Path and Beyond.
On Feb. 8, 2018, Pure Data Systems, LLC (“Pure”) sued Electronic Arts, Inc. (“EA”) and Ubisoft, Inc. (“Ubisoft”) for alleged infringement of U.S. Patent Nos. 5,999,947 to Zollinger et al. and 6,321,236 to Zollinger et al.  



Claim 1 of the ’947 Patent reads:
1. A method of distributing database differences corresponding to change events made to a database table located on a server computer to client copies of the database table located on one or more client computers comprising the steps of:
  creating and storing on the server computer one or more sequentially versioned updates, each update containing database differences in a generic format, the database differences corresponding to database change events made to the database table since the preceding update;
  receiving, from a client computer, a request for all the database differences needed to make the client copy of the database table current;
  determining which updates are necessary for making the client copy of the database table current;
  ascertaining a client database engine type wherein the client copy of the database table is held;
  generating and translating specific database differences, selected based on the necessary updates, into instructions based on the ascertained database engine type prior to transmission; and
  transmitting the specific database differences to the client computer so that the client computer may execute the instructions on the client database engine, thereby making the client copy of the database table current in response to the specific database differences translated into the instructions.
Pure claims that EA and Ubisoft infringe their patents via their “game library updates.”  For example, “if a user purchases a game through the [EA’s] Origin website using a browser, the user’s game library is updated on a server” such that “[w]hen the user next logs into the Origin client, those updates are transmitted to the Origin client running on the user’s computer.”

The lawsuits against EA and Ubisoft are different, likely due to venue issues, but the complaints are almost identical. Pure appears to have also filed similar complaints against Valve Corporation, the Fox News Network, Imgur, CNET, CNN, and Pinterest, among others.  
On Feb. 7, 2018, Nintendo Co., Ltd. and Nintendo of America, Inc. (“Nintendo”) filed two petitions for Inter Partes Review of U.S. 6,219,730 to Nguyen, a patent owned by Genuine Enabling Technology LLC (“Genuine”). 

The challenged ’730 Patent relates to user input:

1. A user input apparatus operatively coupled to a computer via a communication means additionally receiving at least one input signal, comprising:
   user input means for producing a user input stream;
   input means for producing the at least one input signal;
   converting means for receiving the at least one input signal and producing therefrom an input stream; and
   encoding means for synchronizing the user input stream with the input stream and
   encoding the same into a combined data stream transferable by the communication means.
According to Nintendo, the ’730 Patent is anticipated at least in part by the practice of “bit-robbing” which, in short, involves combining an existing signal (e.g., an audio signal) with other signals (e.g., input signals) such that a single data stream could be used to transmit multiple types of data from multiple input.  For instance, Fig. 1B of the ’730 Patent depicts plugging a microphone and speaker into the mouse, in effect combining audio and input data streams:



The use of means-plus-function language may make these claims narrower in scope than they look at first glance.  Before granting Nintendo’s IPR petition, the USPTO Patent Trials and Appeals Board (“PTAB”) will have to figure out what structure is required by the claimed means, and whether Nintendo’s prior art shows that structure.

Nintendo’s Petition for Inter Partes review comes on the heel of the case Genuine Enabling Technology LLC v. Nintendo Co., 1:17-CV-00134-MSG, filed in the District of Delaware on Feb. 8, 2017.  In that case, Genuine asserts that Nintendo’s Wii Remote infringes the ’730 Patent. Per Nintendo, Genuine has also sued Sony for infringement of the same patent.
On Feb. 1, Sony Interactive Entertainment, LLC (“Sony”) filed a Petition for Inter Partes Review of U.S. Patent No. 9,503,742 (the “’742 Patent”).  The prosecution history of the ’742 Patent is not something you see every day: a dispute over a typographical mistake followed an allowance because, despite an admittedly valid rejection, “applicant wishes to obtain a patent.”

As described by Sony, the ’742 Patent relates to stereoscopic image decoding via data compression.  It seems likely that Sony’s filing of the Petition for Inter Partes Review relates to their sales of PlayStation VR headsets.

Strangely, the ’742 Patent has only one claim, which Sony claims should have never been allowed.  According to Sony, during prosecution of the ’742 Patent, the patent examiner made a typographical mistake in an office action: forgetting to cite U.S. Patent No. 5,907,364 to Furuhata et al. (“Furuhata”) to reject dependent claim 23, though Furuhata was cited to reject the independent claim from which claim 23 depended.  On appeal, the Board affirmed all of the examiner’s rejections except for claim 23, noting that the examiner’s error was “perhaps inadvertent” and opening the door for a correction of the rejection.  Perplexingly, the examiner then allowed claim 23, noting in the Notice of Allowance:
The omission of the Furuhata reference appears to be a typographical mistake . . . Examiner informed applicant’s representative that claim 23 should have been affirmed by the board for the same reasons as set forth for claim 1. However, applicant’s representative informed Examiner that applicant wishes to obtain a patent since claim 23 was reversed by the board.
It will certainly be amusing to see what the Board has to say about the above allowance.
On January 30, 2018, Barbaro Technologies, LLC (“Barbaro”) sued Niantic, Inc. (“Niantic”) for the alleged infringement of U.S. Patent Nos. 7,373,377 and 8,228,325. Barbaro’s asserted patents are generally directed to integrating real-world information (e.g., a real-world geographic location) with an augmented reality environment. Barbaro specifically asserts that both Niantic’s Pokémon GO and Ingress infringe the asserted patents.


Claim 1 of the ’377 Patent reads:

1. A method of integrating real-time information into a virtual thematic environment using a computer system including a client and a server, comprising:
   providing a graphics user interface (GUI) module for use in the client system;
   providing a quantum imaging environment (QIE) module in one of the client or the server system;
   providing a digital logic library in one of the client or the server system;
   providing a primary application in the client system;
   providing a first user interface that is associated with the primary application;
   sending a request for first real-time information via the QIE module to the world wide web;
   obtaining the first real-time information via the world wide web;
   downloading the first real-time information from the world wide web into the primary application;
providing access to the first real-time information within the virtual thematic environment via the first user interface;
   providing at least one secondary application within the primary application at the client system;
   sending a request for second real-time information via the QIE module;
   obtaining the second real-time information via the world wide web;
   downloading the second real-time information into the secondary application;
   enabling a user to access the at least one secondary application through the first user interface; and
   enabling the user to control the at least one secondary application through a second user interface.

Niantic, which was spun off from Google, Inc. (“Google”), may have been aware of the Barbaro patents as early as 2006. Per Barbaro, around October 26, 2006, Barbaro sent Google’s Deputy General Counsel a copy of patent publications that led to the issuance of Barbaro’s asserted patents. Google, Inc. allegedly acknowledged the letter but “refused to discuss the matter before the patent issued.” No further detail regarding exchanges between Barbaro and Google are provided in the complaint.

This is case 2:18-CV-00773 in the District Court for Central District of California.  We will track it and keep you apprised of significant updates.
On January 17, 2018, U.S. District Judge John Michael Vazquez of the District of New Jersey dismissed all patent infringement claims asserted by Joseph Scibetta (a/k/a “Bankers & Brokers”) (“Scibetta”), against Slingo, Inc. and RealNetworks, Inc. (collectively, “Slingo”).  The reason: none of Scibetta’s patents survived scrutiny 35 U.S.C. § 101.

Scibetta is the owner of various intellectual property rights relating to a card and casino game called “BANKERS & BROKERS.”   U.S. Patent No. 6,220,597, one of the patents asserted in the case, describes the game in detail:

1. A method for playing a wagering card game comprising the steps of:
   Providing a shuffled stack of playing cards where the cards are touched only by the dealer during the game comprising at least one deck thereof;
   providing a planar game playing surface comprising a plurality of separately delineated areas adapted for the placement of bets;
   establishing odds for payout of winning bets placed in any of the aforesaid plurality of separated and delineated areas;
   establishing an initial order of play where players are designated as first player, and so on to a last player;
   initiating a round of play by a first player establishing a bet by placing a wager in a designated space on the table near a pot designated and marked onto a surface for displaying a face-up side of a card dealt to each said player;
   dealing a stack of six face-down cards as a player's pot concealing the faces of each dealt card from each player and a dealer, to the first player and any other player in the game;
   dealing a stack of six face-down cards, concealing the faces of each dealt card from each player and the dealer, to the dealer as a dealer's pot;
   then, only the dealer turning the dealer's pot over and turning over the pots over for each player one at a time;
   then the dealer immediately determining a player's winning status or loss status by comparing a face-up card dealt to each player and a now face-up card dealt to the dealer in the dealer's pot;
   after comparing a dealer's face-up card to a player's face-up card, paying any winning bets placed by each player in the game;
   collecting the played or turned up cards from each pot after bets are paid and placing these cards in a discarded cards designated area on the table;
   determining whether the turned-up dealer's card matches the corresponding turned-up player's card, whereby at any time during the game or before the dealer may imposed step of disqualifying and discarding any got touched by a player.

The other asserted patents (U.S. Patent Nos. 6,626,433, 7,331,580, 7,618,044, and 7,857,314) are similar.

Slingo is alleged to have distributed an unlawful copy of BANKERS & BROKERS on their website slingo.com, which was later acquired by RealNetworks, Inc. The alleged copy of BANKERS & BROKERS is reproduced below (as retrieved from archive.org).



On December 12, 2016, Slingo moved to dismiss Scibetta’s case.  Among other assertions, Slingo claimed that all of Scibetta’s patents were invalid under 35 U.S.C. § 101.

The Court agreed. With regard to Alice step one, the Court noted that Scibetta’s asserted patent claims were substantially similar to the “method of conducting a wagering game” patent found invalid in In re Smith, 815 F.3d 816 (Fed. Cir. 2016), cert. denied sub nom., Trading Techs. Int’l, Inc. v. Lee, 137 S.Ct. 453 (2016).  Indeed, the Court noted that “there is no meaningful distinction between, on the one hand, the unpatentable abstract idea found in In re Smith and, on the other hand, the method and system claims here.”  Per the Court, the fact that some claims recited, among other things, a “‘means’ for identifying player/dealer positions” did not “change the fact that [BANKERS & BROKERS] stems from a patent ineligible abstract idea.”

With regard to Alice step two, the Court found that BANKERS & BROKERS “reflects well-understood, routine, and conventional wagering activity” such that “Plaintiffs made no technical improvement on the original abstract idea of a card wagering game using a standard deck of cards.”  The mere implementation of such a game on a computer did not change the Court’s analysis: “the claims do nothing more than simply describe the application of the game-related abstract ideas to a generic computer system.”

Scibetta’s case is not doomed.  Scibetta still has a viable claim for misappropriation against Slingo.  Moreover, while Scibetta’s trademark and unjust enrichment claims were also dismissed by the Court, the claims were dismissed without prejudice and largely based on pleading deficiencies.  As such, Scibetta will be afforded an opportunity to amend and supplement his complaint.

This case illustrates the difficulties of enforcing patents that, despite their presumption of validity, were granted prior to the Alice decision when the USPTO was using a different standard of examination.  A trend is appearing where the presumption of validity applied to those patents by courts appears to be inherently lower than that given to more recently granted patents.  Scibetta asserted five patents, and not one survived a motion to dismiss.  Those looking to acquire patent portfolios, for example, should be particularly wary of purchasing patents which may look great but may face significant hurdles during enforcement.  Sometimes, a single strong patent is worth more than a hundred unenforceable ones.

On January 12, 2018, photographer Christopher Sadowski sued IGN Entertainment, Inc. (“IGN”) for copyright infringement.  The copyright in question: a photograph of the Pokémon GO homepage on Sadowski’s cell phone, similar to (but not the same as!) the stock photo shown below.


Sadowski licensed his photograph to the New York Post for a July 12, 2016, article regarding a man who got caught cheating on his girlfriend through Pokémon GO.  It appears that IGN may have infringed Sadowski’s copyright by using the image when discussing the New York Post article in an IGN Hungary article titled “6 Crazy Pokémon GO Stories.”  The image is absent from IGN’s U.S. version of the article.

However, Sadowski’s case may have an Achilles' heel.  Because Niantic and Nintendo have intellectual property rights in their game (including the login screen), Sadowski’s photograph is arguably a derivative work, and his copyright would thereby extend only to the “material contributed by the author of such work, as distinguished from the preexisting material employed in the work.”  That’s not likely to be much.  Moreover, whatever minimal copyright Sadowski has in his photo “does not imply any exclusive right in the preexisting material.”  Lastly, protection for a derivative work using someone else’s material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully (e.g., without the appropriate license).  In other words, there’s a fair argument that Sadowski’s photograph rights are only as good as Nintendo and/or Niantic will allow them to be.

Sadowski’s case against IGN is a cautionary tale for Internet content creators. While many questions about the applicability of fair use on the Internet exist, it remains a bad idea to use images from other websites–even news websites–without appropriate permission.  Indeed, a royalty free version of the exact same photo exists and could have saved IGN a lot of grief.
On January 8, 2018, Epic Games, Inc. (“Epic”) continued its legal crusade against alleged Fortnite hackers by suing Yash Gosai, a resident of Auckland, New Zealand, for copyright infringement, breach of contract, and conversion.



 In previous cases (which we discussed here, here, and here), Epic sued alleged cheaters in Fortnite, generally targeting those distributing methods of cheating in-game. In this suit, Epic alleges that Gosai distributed an exploit which allowed players to obtained “V-bucks” (in-game currency) for free, stating: “[p]layers who use exploits to avoid paying for items in Fortnite are stealing from Epic.”

Like its previous suits, Epic used the YouTube DMCA notification/counter-notification process to acquire jurisdiction over Gosai.
AM General LLC v Activision Blizzard Inc et al, 
FIled November 7, 2017, SDNY, No. 17-08644.

AM General—the maker of HUMVEE vehicles—has sued Activision over Call of Duty’s inclusion of HUMVEE vehicles in various Call of Duty games. AM General claims trademark and trade dress infringement, among others. The complaint specifically mentions eight Call of Duty games, including Modern Warfare, Black Ops II, Ghosts, and Heroes. In addition to the video games themselves, the complaint also alleges infringement by the Call of Duty series of Mega Bloks and BradyGames strategy guides.

Image source - wikia
According to the complaint, the use of HUMVEE vehicles throughout the Call of Duty series is unauthorized. There are several issues at play in a case like this. Trademark and trade dress rights—which AM General is asserting here—are often at issue in video games. If the use of a mark creates a likelihood of confusion or dilutes/tarnishes the mark, it may be trademark infringement.

Regarding likelihood of confusion, AM General claims that the appearance of their HUMVEE vehicles in Call of Duty games implies that AM General endorsed or sponsored the Call of Duty games. And for a massively successful franchise like this one—according to the complaint, the Call of Duty franchise has generated more than $5.2 billion in revenue—AM General obviously would be interested in the revenue generated by such a license. One issue may be whether in some cases consumers would be more likely to assume the mark owner endorses the mark’s use when the mark appears in a big budget AAA game—like Call of Duty—which might weigh in favor of likelihood of confusion.

Another typical issue in these types of cases is whether the use of a particular product—e.g., a real-life vehicle—in a video game might dilute or tarnish a trademark protecting that product. The threat of tarnishment arises when use of a mark “conjure[s] associations that clash with the associations generated by the owner’s lawful use of the mark.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 31 (1st Cir. 1987). For example, if players can use HUMVEE vehicles in the game to run people over, AM General might see that as tarnishing the HUMVEE mark.

Dilution occurs when a mark is used in a context other than the original context of the protected mark. Since real-life HUMVEE vehicles are specifically designed for use in war zones, Activision might argue that a video game depicting the use of HUMVEE vehicles in a war zone may not tarnish or dilute marks protecting those vehicles.

Another typical defense for video game developers is that the mark’s use is functional. When the mark’s use is functional or serving “other than a trade-mark purpose,” a mark holder might not have a winning infringement claim.

Activision’s lawyers have not yet responded to the call of duty—at least in answering AM General’s complaint. But when they do, some of these defenses will likely be weapons in their arsenal. In the meantime, let us know below whether you agree or disagree with AM General’s claims against Activision.

Thanks to Greg Israelsen for preparing this article.
On November 6, 2017, Activision Blizzard, Inc. (“Blizzard”) filed a petition for inter partes review (“IPR”) against Game and Technology Co. Ltd. (“GAT”).  Blizzard is challenging claims 1-7 of U.S. Patent No. 7,682,243 (the “’243 Patent”).  The same claims in the same patent were challenged by Wargaming Group Ltd. (“Wargaming”) in IPR2017-01082, which Blizzard plans to join.



Activision’s IPR petition is responsive to a lawsuit that GAT brought against Blizzard in the Eastern District of Texas on July 9, 2015 (No. 2:15-CV-1257, now 2:16-CV-6499 in the C.D. Cal.).  In that case, GAT has asserted that Blizzard’s World of Warcraft infringes three patents: the ’243 Patent, U.S. Patent No. 8,253,743, and U.S. Patent No. 8,035,649.  In separate suits, GAT has sued Wargaming, Valve Corporation, and Riot Games, Inc.

The ’243 Patent generally relates to a “pilot” and a “unit associated with the pilot,” such as a player character and an animal mount.  Claim 1 of the ’243 Patent reads:

1. An online game providing method for providing a pilot and a unit associated with the pilot at an online game, the method comprising the steps of:

controlling an online game such that a player can manipulate a pilot and a unit associated with said pilot, said pilot being a game character operated by a player, said pilot representing the player, said unit being a virtual object controlled by the player;

maintaining a unit information database, the unit information database recording unit information on said unit, in which the unit information includes ability of said unit and sync point information;

maintaining a pilot information database, the pilot information database recording pilot information on said pilot, in which the pilot information includes a unit identifier indicating said unit associated with said pilot, ability of said pilot and the ability of said unit associated with said pilot;

receiving a request for update on first pilot ability information of a first pilot;

searching for unit identifier information associated with the first pilot by referring to the pilot information database;

searching for sync point information associated with the searched unit identifier information by referring to the unit information database; and


updating and recording the first pilot ability information and unit ability information associated therewith in accordance with the searched sync point information such that said ability of unit is changed proportionally to changes in ability of the pilot by referring to said sync point,

wherein said sync point information is a ratio of which changes in said ability of pilot are applied to said ability of unit, and said steps of searching for unit identifier information and of searching for sync point information are performed by a processor.

Blizzard argues that the ’243 Patent’s “alleged novelty” relates to the “sync point,” bolded above.  Per Blizzard’s petition, the ’243 Patent is anticipated because the Dungeons and Dragons Player’s Handbook Core Rulebook I v. 3.5 (“D&D 3.5”) discloses “player characters with animals whose abilities are synchronized based on ratio relationships, so that increases to the character’s abilities are applied proportionally to the animal’s abilities.”  For instance, D&D 3.5 allegedly discloses that a druid’s animal companion’s abilities increase corresponding to the class level of the druid.

More information on the Inter Partes Review process is available here.
        Next >

Get the Patent Arcade App

Get the Patent Arcade App
Available now for iOS

Search This Blog

Recognition

Buy your copy today!

Buy your copy today!
ABA Legal Guide, 2d Ed.

Ross Dannenberg

Scott Kelly

Scott Kelly

Labels

Archives

Blogroll

Data Analytics

Copyright ©2005–present Ross Dannenberg. All rights reserved.
Visit BannerWitcoff.com