Patent Arcade

Back in July 2006, Anascape Ltd. sued Microsoft and Nintendo over various game controller patents, including United States Patent Numbers 5,999,084; 6,102,802; 6,135,886; 6,208,271; 6,222,525; 6,343,991; 6,344,791; 6,347,997; 6,351,205; 6,400,303; 6,563,415; and 6,906,700. Microsoft settled for an undisclosed sum on May 1, apparently before trial. Nintendo, however, fought on... to no avail.

On May 14, 2008, Nintendo was ordered to pay Anascape Ltd. $21 million after a jury found that Nintendo infringed Anascape's patents with its WaveBird and Gamecube controllers for the Gamecube and Wii Classic controller for the Wii. The Wii remote and nunchuck controllers were not accused of infringement in the suit. Nintendo plans on appealing.

The case is Anascape Ltd. v. Microsoft Corp. et al., case number 9:06-cv-158 in the U.S. District Court for the Eastern District of Texas.

Labels: Lawsuits, Patents

The status quo is that video game play methods are patentable subject matter, provided the game play methodology is new, useful, and nonobvious. Never before has there been a case with the potential to limit video game patents as with the In re Bilski appeal. Today the Federal Circuit heard oral arguments in this case, en banc (i.e., the entire court), including arguments from two amicus parties, which is almost unheard of. A summary of today's arguments is provided below, as prepared by Bradley C. Wright of Banner & Witcoff. The views expressed in this posting are the views of Mr. Wright, and not necessarily the views of Banner & Witcoff:

FEDERAL CIRCUIT MAY CLAMP DOWN ON PROCESS PATENTS

by Bradley C. Wright

Banner & Witcoff, Ltd.

On May 8, 2008, the U.S. Court of Appeals for the Federal Circuit held a rare en banc hearing to determine what constitutes a patentable process under the patent laws. The appeal was from the U.S. Patent and Trademark Office (PTO), which had rejected Bilski’s patent application for a method for managing consumption risk costs of a commodity. The claimed process included three steps involving various transactions between a commodity provider and market participants in a way that balanced risk. The PTO rejected the patent application on the basis that it was not a “process” as that term is defined in the patent statute and earlier court decisions. According to the PTO, in order to be patentable, a process must either be tied to a particular machine, or it must transform a tangible article to a different state. Because Bilski’s claimed invention did neither, it did not meet the definition of a “process.”

Bilski’s attorney argued to the court that a process should be patentable if it produces a “practical result,” regardless whether it is tied to a machine or transforms something tangible. According to Bilski’s attorney, the various transactions recited in the claim were very specific and involved real-world activities. Several of the judges appeared to have difficulty agreeing with Bilski’s proposed “real-world” test for patentability. Bilski also argued that the more specific a patent claim is, the less likely it is to constitute an abstract idea, which the Supreme Court has stated is unpatentable. Several of the judges also appeared to question whether the “useful, concrete and tangible” test seemingly created in its earlier State Street Bank case provided a workable standard to judge patentability, but Bilski’s attorney endorsed the continuation of that standard.

Professor Duffy argued on behalf of the Regulatory Data Corp., one of many amicus parties in the case, that the PTO has taken too narrow a view of what is a patentable process, and urged the Federal Circuit not to draw any bright-line rules. Instead, Duffy proposed that the court look at various factors to determine whether a process was patentable. He argued that the breadth of the claim should be one factor to consider, and seemed to agree that the degree to which the claim was connected to “real-world” activities could be another factor, but the judges seemed to have difficulty eliciting a clear list of factors that should be considered or which might be more important than others. He also criticized the requirement that there must be something tangible and physical in order to constitute a patentable process. Some of the judges appeared to have difficulty accepting the lack of any concrete standard under this “factor-based” test.

The PTO argued that the U.S. Supreme Court decision in Diamond v. Diehr made it clear that in order to be patentable, a process must either be tied to a machine or must transform physical subject matter. The judges explored whether throwing a baseball “transformed” the baseball in a patentable way, which the PTO answered in the negative. One of the judges asked whether a method of performing chiropractic might constitute a patentable “transformation,” but the PTO did not take a position one way or another on that question. Some of the judges expressed concern that adopting a rigid rule might eliminate patents on software, but the PTO responded that most software implemented on computers would still be patentable because they transformed the computer and the software was tied to a machine. Chief Judge Michel pointed out that the Supreme Court had previously ruled that not every process tied to a machine would be patentable if there was insignificant “post-solution activity.”

Bill Lee argued on behalf of the financial services industry (another amicus) that the court should adopt a factor-based test based on three principles: First, abstract ideas and mental processes should not be patentable. Second, a process involving a physical transformation of matter would normally be patentable, but he rejected the idea that throwing a baseball “transforms” the ball in any way. Third, a process that is tied to a physical machine in a non-conventional way might be patentable, but not if it was tied in a conventional way. Several of the judges questioned whether “non-conventional” should be an added requirement for a process, given that every process must already be novel and nonobvious in order to qualify for a patent.

Finally, Bilski’s attorney in rebuttal argued that the information recited in Bilski’s patent application constituted something that was “physical” and he reiterated his point that there was real-world interaction recited in the claim, which was all that was needed to satisfy State Street Bank’s “useful, concrete and tangible” test.

Although it is difficult to predict what the court might say in ruling on Bilski’s patent application, it seems likely that the PTO’s decision will be upheld and Bilski’s claim to a method of managing risk will not be deemed to be patentable. Two of the judges appeared to take a broad view of patentable subject matter, leaving patentability to be determined under the remaining the standards of novelty, nonobviousness, and definiteness. Several judges appeared concerned about eliminating broad categories of invention such as computer software or financial industries. Some of the judges seemed concerned about allowing process patents only where the process was tied to a particular machine or transformed subject matter in some way. But a majority of the judges appeared to have difficulty accepting that Bilski’s claim was something that the patent laws were intended to cover.

In this author’s opinion, the most likely outcome is that the Federal Circuit will create two safe harbors for process patent patentability, and leave open the door to future technological developments that might fall within additional safe harbors. The two safe harbors would be that a process involving steps tied to another category of invention (e.g., a machine or a composition of matter) could be patentable, and a process that transforms something tangible could be patentable. Mere manipulation of numbers, without more, would not be patentable. Bilski’s claim, which seems to recite intangible principles of arranging a financial transaction in a certain way, would fail the test. Similarly, patents involving methods of playing sports or other activities lacking machinery or other tangible things might not survive the court’s decision. But the court is likely to tread carefully so that it does not wipe out patents in whole industry areas, such as banking and computer software. And the court will likely refine its earlier State Street Bank decision to clarify that “useful, concrete and tangible result” is not enough for patentability.

Labels: Lawsuits, Patents

I don't normally track foreign video game cases, but perhaps I should. However, it does make one more category of work for me in view of all my regular work and blogging efforts. If only I had some help... In any event, a reader (thanks Tim!) passed this morsel along, and its worth sharing.

Square Enix, the company best known for the Final Fantasy, Dragon Quest and Kingdom Hearts titles, recently won a copyright infringement lawsuit in South Korea over Fantom Entertainment Group over unauthorized use of scenes from Square Enix’s Final Fantasy VII: ADVENT CHILDREN, a CG-animated film. According to the press release, “the amount of damages awarded [300 Million Korean Won] … in this case is the largest the courts in South Korea have ever awarded in cases infringing one single work of art.” Square-Enix’s GC remarked that “Square Enix will continue to take decisive action against any infringements upon the Company’s intellectual property, recognizing that this property is one of our most crucial resources."

The infringing subject matter at issue has to do with a scene from FFVII: Advent Children, and a music video from Korean singer Ivy in the song “Sonata of Temptation.” The Korean singer appropriated the content from Square-Enix without their permission or authorization. Below are the links to the respective videos; the similarities between the two are immediately apparent, and quite striking.

Original Content from FFVII: Advent Children

Ivy - Sonata of Temptation (Music Video)

Square Enix Press Release

(Thanks to Tim Hsieh for finding this)

Labels: Copyrights, Lawsuits

Somehow this well reported case got overlooked here at the Patent Arcade, and that appears to be because I thought I'd already written about it. In any event, it now gets its own post...

On October 24, 2007, six content owners in Second Life sued Thomas Simon, aka Rase Kenzo, for infringing their copyrights in various online goods. Also included in the complaint were counts for unfair competition and false description of origin, conspiracy, and counterfeiting. The goods included clothing and scripted furniture (aka, sex beds), among other things. After only two months it appears that Mr. Simon saw the light and the plaintiffs proved their point--the case settled in December, 2007, for about $525, and an agreement by Mr. Simon to cease his questionable activities.

At the very least this case is important because it demonstrates the seriousness that many Second Life content creators give to their businesses, treating their intellectual property just as any other business would. The stakes will only get higher as virtual worlds such as Second Life get bigger, and the players have even more money at stake.

Documents:

Complaint-07_10_24_eros_et_al_v_simon_complaint.pdf

Settlement-ecf.nyed.uscourts.gov_cgi-bin_show_temp.pdf

Labels: Copyrights, Lawsuits, MMOG, Trademarks

Today the U.S. District Court for the Eastern District of Virginia granted Tafas' and Smithkline Beecham's Motions for Summary Judgment, effectively holding that the USPTO's proposed 5/25 and 2+1 rules regarding claims and continuation practice are illegal, and therefore null and void.

Read the opinion here:
GSKSummJudgOPINION.pdf

The case is: Tafas v. Dudas, Docket No. 1:07cv846, as combined with Smithkline Beecham Corporation v. Dudas, Docket No. 1:07cv1008, in the Eastern District of Virginia, before judge Cacheris.

Now we wait to see if there is an appeal...

Labels: Lawsuits, Patents, USPTO

Well it looks like this case has not settled yet, and the parties have filed their summary judgment motions. MDY's Motion can be viewed here. Blizzard's filings are here, here, and here.

Labels: Lawsuits, MMOG

Eros, the maker of the Second Life sex bed, sued the avatar Volkov Catteneo for illegally copying and selling unlicensed copies of the sex bed, thereby infringement the intellectual property of Eros. After serving subpoenas on PayPal, Linden Labs, Charter Communications and AT&T, Volkov was determined to be Robert Leatherwood. The case, filed in the Middle District of Florida (case 8:07-cv-1158-T-24TGW), was recently settled by the parties. The settlement should be finalized soon, and the terms include a provision that Leatherwood will not do any more copying.

Read more.

Labels: Copyrights, Lawsuits

After receiving a letter accusing them of patent infringement, Activision filed a declaratory judgment action March 12, 2008, against Gibson Guitars, asking the court for finding of invalidity and noninfringement. Gibson is asserting that it has a patent on a musical performance simulation, which Gibson alleges Activision infringes via its popular Guitar Hero games.

The lawsuit was filed in the Central District of California. The patent is U.S. Pat. No. 5,990,405, entitled "System and Method for Generating and Controlling a Simulated Musical Concert Experience," issued Nov. 23, 1999. At a glance, the broadest claim appears to be:

13. A system for simulating participation of a user playing a musical instrument in a pre-recorded musical performance having audio and video portions, the musical instrument producing instrument audio signals at an instrument audio output when the instrument is played, comprising:

a. a source playback device for playback of the audio and video portions of the pre-recorded musical performance through corresponding source audio and source video outputs;

b. a source audio control device for controlling one or more characteristics of the audio portion of the pre-recorded musical performance during playback, the source audio control means operably connected to the source audio output and to the instrument audio output and having a controlled audio output; and

c. the source audio control device is responsive to the instrument audio signals whereby at least one characteristic of the audio portion of the pre-recorded musical performance is controlled by playing of the musical instrument by the user.

We'll keep tracking this case and let you know of any major developments.

Labels: Lawsuits, Patents

The re-performance of a song for use in a video game pursuant to a non-exclusive synchronization license does not, without more, violate the original artists' right of publicity, even if the artists are referenced, the U.S. District Court for the Eastern District of Michigan held Jan. 22 (Romantics v. Activision Publishing Inc., E.D. Mich., No. 07-14969, 1/22/08).

Activision recorded a new version of the song for use within Guitar Hero. When players encountered the song, it came with the subtitle "as made famous by the Romantics." The Romantics said that this was a violated their right of publicity, was unfair competition under the Lanham Act, and constituted unfair competition. The court disagreed.

Read more here.

Labels: Lawsuits

From IP Law360:

MGA Entertainment, makers of the popular Bratz dolls, will hand over $13.2 million to video game company Ubisoft Entertainment, after an arbitrator ruled that Ubisoft had not violated the

Bratz trademark but MGA had violated a contract between the two companies.
Ubisoft had obtained a license from MGA for the right to make video games based on the Bratz franchise in the spring of 2002.

But in 2003, MGA purported to terminate the license under the claim that Ubisoft had failed to release a “substantial number” of the games in Europe, which was one of the provisions in the licensing agreement.

Ubisoft argued that it had not breached the license and continued to make Bratz video games. MGA promptly sued, alleging copyright infringement for producing the Bratz games without a license and breach of contract.

Ubisoft counter-sued for invalid termination of the licensing agreement. The case then went to arbitration.

Last year, the arbitrator decided that Ubisoft had been correct and the termination was wrongful. It awarded Ubisoft the $13.2 million in lost profits, attorneys' fees and interest.

Unsatisfied with the verdict, MGA then challenged the award in a Los Angeles county court. However, that motion was later denied. MGA agreed to pay the award in late-December 2007. The judgment order was entered on Feb. 8.

More more information, read the full article here.

Labels: Copyrights, Lawsuits

Lonestar Inventions LP v. Nintendo of America Inc., case no. 6:07-cv-00261 in the U.S. District Court for the Eastern District of Texas.

This lawsuit between patent-holding company Lonestar Inventions LP and gaming conglomerate Nintendo Inc. will play out in mediation after a federal judge ordered the two companies to try their case before a mediator on Thursday, Dec, 13, 2007. Texas-based Lonestar first sued Nintendo in June, alleging that the company's popular Wii video game console infringed on a patent titled “High capacitance structure in a semiconductor device.”

Stay tuned...

Labels: Lawsuits, News

C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., et al.

--- F.3d ---, 2007 WL 2990366, 84 U.S.P.Q.2d 1328 (8th Cir. 2007)

In a much watched case, on October 16, 2007, the United States Court of Appeals for the Eighth Circuit decided C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., et al., regarding whether it is ok for fantasy sports operators to use professional athletes’ names and historical statistics without a license from the players, the players association and/or the relevant league. In this case, the sport is baseball, but the ruling can be applied across the board to any fantasy sports league. In this case, the Eighth Circuit held that C.B.C. Distribution and Marketing, Inc. (“CBC”), a provider of online fantasy baseball products, could use the names of and statistics of Major League Baseball (“MLB”) players without a license from Major League Baseball Advanced Media, L.P. (“Advanced Media”), a MLB holding company to whom The Major League Baseball Players Association (“the Players Association”) had granted the exclusive right “to use baseball players’ names and performance information ‘for exploitation via all interactive media.’” Slip. Op. at 3. MLB and Advanced Media unsuccessfully argued that CBC’s use of player names and statistics was a violation of the players’ rights of publicity, copyright infringement, and breach of contract, among other theories. The court held that the fantasy sports operator's actions were protected under the First Amendment.

In 1995, the Players Association first granted CBC a license to use the names of MLB players and their corresponding statistics in fantasy baseball games. In 2002, the Players Association granted CBC a renewed license, which gave CBC the rights to use “the names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player” in connection with CBC’s fantasy baseball products. Slip. Op. at 3. When this renewed license expired in 2005, however, the Players Association did not grant CBC another renewed license. Instead, the Players Association granted the exclusive right “to use baseball players’ names and performance information ‘for exploitation via all interactive media’” to Advanced Media (the MLB holding company mentioned above). Id. After Advanced Media received this exclusive license from the Players Association, it approached CBC and proposed a license under which CBC could promote fantasy baseball games on MLB.com, but could not continue offering its own fantasy baseball products. CBC subsequently brought this declaratory judgment lawsuit, seeking a court decree that it could continue to use the names of and statistics related to MLB players without a license from Advanced Media.

At issue in this case was whether MLB could exercise exclusive control over the fantasy baseball business by limiting others’ access to factual player information (i.e., names and statistics). In order to exercise this control, MLB, acting through the Players Association and Advanced Media, tried to establish that CBC’s use of the names of MLB players and their corresponding statistics violated rights of publicity, was copyright infringement, and was a breach of the previous licensing contract. At the trial court level, MLB argued that CBC was violating the baseball players’ individual rights of publicity, which are protected under state law (Missouri state law in this case, pursuant to federal jurisdictional rules). Although the trial court held that MLB failed to establish these state-law rights, the Eighth Circuit reversed this determination and found that state-law rights of publicity were implicated. However, the Eighth Circuit further held that First Amendment considerations (i.e., the “right to use information that is available to everyone”) trumped these state-law rights. Significantly, in deciding that these state-law rights “must give way” to First Amendment considerations, the Eighth Circuit characterized the baseball players’ names and their corresponding statistics as information that is “readily available in the public domain.” Slip. Op. at 7. Because MLB (or anyone else for that matter) cannot exercise exclusive control over information in the public domain, the Eighth Circuit affirmed the trial court’s judgment in favor of CBC, thus allowing CBC to continue using MLB players’ names and statistics without a license.

(Earlier in the case, MLB and Advanced Media also tried to argue that the use of player names and statistics was an infringement of one or more copyrights owned by MLB. MLB argued that it owned a copyright in the compilation of names and statistics. The court didn’t buy it and indicated that the names and statistics were public domain factual information.)

So for those of you running your own fantasy sports sites (or at least fantasy baseball sites), the decision in this case means that you can make use of the same information as CBC (i.e., player names and statistics) without obtaining a license from the relevant professional sports league. However, you should still consult a lawyer regarding your particular situation, because the ruling in this case involves some complicated interactions between state and federal law, and perhaps could have been decided differently by a different court with respect to the rights of publicity issues.

Labels: Copyrights, Lawsuits

Word on the street is that MicroUnity and Sony Computer Entertainment America have settled their ongoing patent dispute regarding Sony's PlayStation products. The two companies have asked for a 30-day stay of all deadlines in the pending litigation in the Eastern District of Texas so they can put the finishing touches on their settlement agreement. MicroUnity first filed the lawsuit against Sony in November 2005, accusing the Japanese company of infringing 10 patents with its Sony Playstation 2, Playstation 3 and Playstation Portable game consoles. The patents cover various semiconductor integrated circuits and system processes that MicroUnity claimed were used to make the various Sony products.

Read more here.

Labels: Lawsuits, Patents

Frosty Treats Inc. v. Sony Computer Entertainment America Inc. 426 F.3d 1001 (8th Cir. 2005)

I scream, You scream, We all scream for Ice Cream!

Sony was sued over its use of an ice cream truck and clown character in its Twisted Metal video game series. Sony has 6 games in the series, but only the last one, “Small Brawl” depicts an ice cream truck with a label of “Frosty Treats” on the side. Frosty Treats alleged that their mark “Frosty Treats” was protectable under trademark law and consumers would think Frosty Treats was affiliated with the games.

Frosty Treats sells frozen deserts out of ice cream trucks. Their vans have a 9” X 4” decal on the rear of the truck with “Frosty Treats” in pink capital letters. The trucks also have a clown pointing his finger saying “watch cars-cross at rear” so children will cross at the rear of the truck.

Twisted Metal depicts a devious clown driving an ice cream truck (named Sweet Tooth or Needles Kane), a purple-nosed, black-eyed clown on the side of a remote control truck and a clown head on the antenna of the remote control truck. The court held that the clown in Twisted Metal had “virtually no resemblance to Safety Clown.” Even Frosty Treat’s CEO admitted there was no resemblance. He stated at his deposition, “They don’t look the same way, but . . . if the Safety Clown had a brother who was nasty and mean, it would look somewhat like Sweet Tooth.”

The Court of Appeals affirmed the decision of the district court holding that the mark “Frosty Treats” was not protectable, the clown graphic was not likely to cause consumer confusion, and Frosty Treat’s mark or trade dress was not being diluted. The court found “Frosty Treats”, which had never been registered was at the most, a descriptive mark without a secondary meaning, and not protectable as a trademark. While Frosty Treats conducted a survey to prove secondary meaning, they were unsuccessful. The court found Sony’s survey of 204 children and 200 adults who couldn’t remember the names of any ice cream trucks more convincing.

The court noted that the use of a clown on ice cream trucks is not novel. Many ice cream trucks have clown designs. Even though the ice cream truck in Small Brawl depicted Frosty Treats on the ice cream truck, the court held that “no reasonable juror” could find that the trade dress of Frosty Treats and the depictions in Twisted Metal were not similar, nor was Sony trying to pass off the Frosty Treat’s mark as its own.

Labels: Lawsuits

MDY Industries, LLC v. Blizzard Entertainment, Inc. et al.

United States District Court, District of Arizona

Case No. 2:2006cv02555, Filed October 25, 2006

On October 25, 2006, MDY Industries, LLC (“MDY”) filed a declaratory judgment action against Blizzard Entertainment, Inc. (“Blizzard”) and Vivendi, SA (“Vivendi”), Blizzard’s parent company, in the U.S. District Court in Arizona seeking, among other things, a decree from the court that MDY has not violated any of Blizzard’s intellectual property rights relating to the “World of Warcraft” video game.

MDY sells a software application called “WoW Glider” (also known as “Glider”) that essentially automates game play in Blizzard’s World of Warcraft. This automation, however, violates Blizzard’s Terms of Service for World of Warcraft, a fact that MDY actually admits in the “Frequently Asked Questions” portion of the Glider website. See http://mmoglider.com/FAQ.aspx#G3. In addition to allowing gamers to feel like lawless rebels, Glider appeals to World of Warcraft players because World of Warcraft is a massively multiplayer online role-playing game (MMORPG) in which players must spend a great deal of time playing in order to “level up” their characters. Although it would seem strange that gamers would want to find a way to play less, the leveling in World of Warcraft is really only a part of the game, and a tedious part at that. Indeed, once a player reaches the maximum level, he or she can begin playing the “end game” content that is typically more challenging and dynamic than the other game content. Moreover, in addition to automating leveling, Glider also automates some of the other more tedious tasks in World of Warcraft, such as “grinding” reputation and “farming” gold, by automatically and repeatedly killing certain computer-controlled enemies. Glider accomplishes this automation by simulating the keystrokes and mouse movement that would normally be the control input from the player. Thus, instead of playing World of Warcraft for hours to level, grind, or farm, a player can configure Glider to perform whatever tasks he or she desires, and then leave Glider to play accordingly. As Blizzard sees it, however, Glider allows players to cheat by gaining an unfair advantage over others, thus detracting from everyone else’s gaming experience. Unfortunately for Blizzard, Glider was more than a mere demon that could be baninshed, and so they resorted to legal action to stop this alleged cheating.

According to MDY’s complaint, representatives for Blizzard and Vivendi appeared unannounced, (as if by magic?), at the private residence of Michael Donnelly, the sole member of MDY according to Blizzard, on the morning of October 25, 2006. At this confrontation, the Blizzard and Vivendi representatives allegedly accused MDY of copyright infringement, Digital Millennium Copyright Act (“DMCA”) violations, and interference with the contractual relationships between Blizzard and World of Warcraft users. The Blizzard and Vivendi representatives also presented Donnelly with a complaint against him and MDY that included all of these charges, and threatened to file this complaint in a federal court in California if he did not comply with their demands. In imminent apprehension of being sued, MDY brought this declaratory judgment action against Blizzard and Vivendi the same day.

Notwithstanding whether Glider’s violation of the Terms of Service for World of Warcraft is interference with contractual relationships, the real issue in this lawsuit is whether Blizzard can prevent MDY from distributing Glider. Indeed, in February 2007, Blizzard filed an answer to MDY’s complaint in which Blizzard asserted counterclaims against MDY seeking injunctive relief and money damages. In these counterclaims, Blizzard argued that it is entitled to an injunction and money damages against MDY based on, among other things, copyright infringement, trademark infringement, and trafficking in technology designed for the purpose of circumventing copyright protection systems in violation of the DMCA. MDY filed an answer to Blizzard’s counterclaims in March 2007 in which MDY denied most of Blizzard’s accusations and raised various affirmative defenses to all of Blizzard’s counterclaims.

As of August 2007, this case is in discovery under a protective order and will remain in fact discovery until January 25, 2008. For now, World of Warcraft players can still use Glider to do their virtual dirty work (as long as they are willing to risk being banned from World of Warcraft for a Terms of Service violation, that is).

Thanks to Rajit Kapur for his assistance with the preparation of this case summary.

Labels: Copyrights, Lawsuits, MMOG

Parallel Processing Corp. has filed a lawsuit alleging that Sony's PlayStation 3 infringes U.S. Pat. No. 5,056,000, entitled "Synchronized parallel processing with shared memory." Not the sexiest of patents with respect to game console hardware, but given the convergence of game consoles and general purpose computers, it's not surprising.

The lawsuit is Parallel Processing Corp v. Sony Corp. of America, case number 07-353, in
the U.S. District Court for the Eastern District of Texas, filed July 26, 2007.

We will add this case to our tracking list and keep you posted of new developments.

Read more here, and here.

Labels: Lawsuits, News, Patents

We previously reported that Konami Corporation sued Roxor Games, Inc. in the Federal District Court for the Eastern District of Texas, alleging patent infringement, trademark infringement, unfair competition, trademark dilution, and trade dress infringement, under both Federal and Texas law, regarding Konami's game Dance Dance Revolution. It appears that we won't see trial or a decision on this case, as they settled out of court as of last autumn (ok, I'm a little late posting on this... sorry). The settlement gives Konami full control of In the Groove's intellectual property rights.

More details here.

Labels: Copyrights, Lawsuits, Patents

Judge Kosinski opens his opinion by positing the most poignant of questions: “Duke Nukem routinely vanquishes Octabrain and the Protozoid Slimer. But what about the dreaded Micro Star?” Duke Nukem 3D, the well known first person shooter that was distributed and owned by FormGen Inc., included an editor that enabled players to create their own levels [Editor’s Note: I once created a map duplicating two decks of a Carnival cruise ship. Regrettably, it didn’t make it onto the CD at issue]. Player-created levels could be posted onto the Internet for download by other players. Micro Star acquired 300 user-created levels, placed them onto a CD, and sold that CD commercially as Nuke It, whose packaging displayed screen shots of the new levels. FormGen threatened to sue, so Micro Star sought a declaratory judgment for non-infringement of FormGen’s copyrights in the game, while FormGen counterclaimed for a preliminary injunction against future copyright infringement by Micro Star. While the district court did grant a preliminary injunction as to the use of the screen shots, it also held that Nuke It was not a derivative work and therefore did not infringe FormGen’s copyright.

On appeal, Kozinski focused on whether Micro Star copied FormGen’s protected expression. Ultimately, the Court disagreed with Micro Star’s arguments that Nuke It was not a derivative work because the MAP files, which contain the instructions defining the custom levels, did not incorporate in a concrete or permanent form any of Duke Nukem 3D’s protected expression (i.e., the artwork rendered onto the screen). Instead, the Court found Nuke It to be a derivative work in concrete or permanent form because it was embodied onto a CD and the MAP files described in detail the audiovisual display that appears on the computer monitor. Additionally, Micro Star’s motive of financial gain worked against their position and foreclosed their ability to assert fair use protection. By selling Nuke It, the Court held, Micro Star “impinged on FormGen’s ability to market new versions of the Duke Nukem 3D story” and “only FormGen [as the owner of the copyright] has the right to enter that market.” FormGen, therefore, did not abandon their right to profit commercially from new levels by granting a license to players to freely distribute new levels to other players. Thus, FormGen received a preliminary injunction as to Nuke It’s commercial distribution. Now if only 3D Realms would hurry up and release Duke Nukem Forever, because we’re all getting a little tired their mantra “it’s done when it’s done…”

Labels: Copyrights, Lawsuits

A new gaming lawsuit was recently filed in the Eastern District of Texas. Beneficial Innovations owns U.S. Pat. No. 6,712,702 on in-game advertising in network games. Claim 1 of the patent reads as follows:

1. A method of playing game instances on the Internet, comprising: first receiving player identification at a game playing Internet accessible node (GPIAN) for first and second players; transmitting, via the Internet, from the GPIAN, first information related to communications between: (a) the GPIAN, and (b) a first Internet accessible node from which the first player communicates with the GPIAN; wherein said first information is utilized in subsequent Internet communications between the GPIAN and the first Internet accessible node; wherein said first information is stored on the first Internet accessible node so that it is available in subsequent different Internet connections by the first player; second receiving, via the Internet, at the GPIAN, first responsive information indicative of said first information being present on said first Internet accessible node; first playing with the first player a first instance of a game, wherein one or more game play representations are transmitted to the first player via the first Internet accessible node; second playing with the second player a second instance of a game, wherein one or more game play representations are transmitted to the second player and from the GPIAN while the first player is playing the first instance; transmitting to at least one of the first and second players, respectively, during one of said first and second games instances, a presentation substantially unrelated to plays of the one game instance, wherein said presentation is advertising a product or service; wherein said step of second receiving at the GPIAN occurs when the first player has reconnected the first Internet accessible node to the Internet after said first information has been stored on the first Internet accessible node and said first Internet accessible node has disconnected from the Internet.

Not exactly bedside reading.

The case is Beneficial Innovations, Inc. v. Blackdot, Inc. et al., Case No. 2-07CV-263, in the District Court for the Eastern District of Texas, filed June 20, 2007. We'll add this case to our watch list and let you know what happens...

Labels: Lawsuits, Patents

On May 25, 2007, WizKids, Inc. filed a declaratory judgment action against Wizards of the Coast (WOTC) regarding WOTC's patent no. 7,201,374, entitled Method and Article of Manufacture for Collectable Game." WizKids allege invalidity and noninfringement of the '374 patent, based on previous threatening letters received from WOTC regarding WizKids Pirates of the Spanish Main game.

The case is civil action C07-0809-CMP in the Federal District Court for the Western District of Washington (Seattle Division).

We will add the case to our list of lawsuits and keep you updated as we learn more, and a brief summary of the '374 will follow as well.

Labels: Lawsuits, Patents

While technically not a video game case, this landmark Supreme Court case just (expectedly) rocked the patent world. The technology: drive by wire for automobiles. The issue: when is an invention nonobvious? The answer: don't know for sure, but we DID learn a little more about when an invention IS obvious--whenever the invention is merely the combination of known elements with predictable results.

This case will have a ripple effect in the patent world, regardless of technology area. No longer is the Federal Circuit's "Teaching, Suggestion, Motivation" test the BMOC. While the TSM test is one way to determine obviousness, it is by no means the ONLY way to do so. The KSR case is a welcome relief for all those who have been advocating that it's too easy to get a patent under the Federal Circuit's TSM regime, but at the same time the post-KSR era will experience higher prosecution costs and less certainty regarding patentability of any invention (at least in the short term, until some clarity is provided through subsequent caselaw).

How does this apply to video game patents? Folks have been criticizing patents for years by saying that the USPTO is granting patents to combinations of known ideas and concepts, including game play patents where the claimed "invention" is a combination of known elements found in previous video games. Such patents were being granted because there was no prior art that explicitly or implicitly suggested the combination, even when each of the combined elements was being used in its normal manner, i.e., providing predictable results. No longer will that be the case. Instead, the price of poker, i.e., the "inventiveness" required to get a patent, just went up, and more will be required of game developers before a patent will be granted for a game play concept.

There will be many who relish in the nuances of the KSR opinion's text, and provide lengthy analysis regarding its mantras, so I won't go into all that here. But I will provide some notable quotes:

• "If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability."
• "a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions."
• "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility."
  
• "A person of ordinary skill is also a person of ordinary creativity, not an automaton."
  

The entire opinion may be found here. Happy reading!

Labels: Lawsuits, Patents

Ghost Rider creator Gary Friedrich has apparently sued a whole host of people, including Take2 Interactive, over his rights in the Ghost Rider character. He claims to have rights to the character since 2001, yet there is a movie, merchandising, video game (that's where Take2 got sucked in), etc.

Sounds like the details are still a little fuzzy, but we'll add this case to our list and keep you posted as we hear more.

In the meantime, read more here.

Labels: Copyrights, Lawsuits

From the April 2007 ABA Journal, citing the U.S. Department of Justice special report:

Of the 7,445 vicil intellectual property lawsuits filed in 2002:

• 140 (1.9%) made it through trial and received a trial verdict.
• In 83 cases (59.3%) the plaintiff won.
• In 53 of the 83 cases, the reward included money.
• Overall median damages award was $965,000
• Median damages in patent cases was $2.3M
• Median damages in copyright cases was $159,000
• Median damages in trademark cases was $84,500
  

Labels: Lawsuits, News

As everyone knows by now, Sony settled with Immersion for about $150M. So while the primary issues have been decided, there is still a little cleaning up to do. Namely, there was a third party involved in the litigation, Internet Services, LLC (ISLLC), which claimed it had some rights in the Immersion patents via a license from Immersion, and thererfore ISLLC should be entitled to some of that $150M. The district court initially dismissed all of ISLLC's claims, and ISLLC appealed. Today the Federal Circuit affirmed the district court's decision to dismiss ISLLC's claims, confirming that ISLLC lacks standing to sue Sony based on its limited license to the Immersion patents.

The full decision can be found here.

Labels: Lawsuits, Patents

While not directly related to video games, this case may have some applicability to the game world, given the convergence of service providers and MMOs (think Linden Labs). In a solid win for the service providers/content providers (think YouTube or MySpace, or Second Life!), a federal appeals court has largely rejected Perfect 10's claim that a service provider violated laws by linking to sites that improperly posted its images. The March 29, 2007, decision from the Ninth Circuit Court of Appeals affirmed the lower court's ruling that CCBill "reasonanly implemented" a noninfringement policy under the DMCA, and was therefore not liable for widespread copyright infringement by numerous web sites that it linked to.

The case is Perfect 10 v. CCBill, __ F.3d __ (9th Cir. March 29, 2007).

Read more here.

Labels: Copyrights, Lawsuits

As reported on Gamespot:

Nearly three years ago, Midway released Psi-Ops: The Mindgate Conspiracy, a third-person stealth-action game and--alongside The Suffering and Roadkill--one of a handful of then-recent original intellectual properties the company had brought to market. However, a Los Angeles County screenwriter is now claiming that the intellectual property wasn't all that original...

Read full story here.

The case is Crawford v. Midway Games Inc., C.D. Cal., Docket 2:07-cv-00967-FMC-JC

We'll start tracking this case and let you know of any significant developments.

Labels: Copyrights, Lawsuits

Alas, Sony has agreed to fork over $150M to Immersion to settle their ongoing patent dispute. The deal ends a five year battle including allegations of fraud and misconduct after a jury initially awarded Immersion $82M in damages. With the very real threat of an injunction hanging over its head, Sony settled. Most likely because the PS3 is still not selling as well as Sony has hoped, and Sony can't afford to have its still-selling-like-hotcakes PS2 yanked from store shelves.

Read more from Reuters here.

Labels: Lawsuits, Patents

Bragg v. Linden Lab, E.D. Pa. (Pending)

Well I had some initial reservation about including this case on our tracking list, given that it wasn't a "pure" IP case. However, in today's day and age, virtual property is the new IP, so we're adding the case to our tracking list, and will keep you posted. In the meantime, here is a link to a nice summary of the proceedings thus far.

Labels: Lawsuits

The Federal Circuit heard oral arguments yesterday in the Immersion v. Sony appeal. As previously reported, the sole issue on appeal is Sony's allegation of misconduct by Immersion.

Sony's arguments at the hearing attempt to highlight its position that the errors of fact regarding a preexisting licensing agreement and prior art document "could have" changed the outcome of the trial had the errors been corrected, and Sony should thus be entitled to a new trial. Sony argued that it was never afforded a chance to determine whether the error was significant or not, because it never knew about a piece of "hidden" prior art. The court questioned the impact of any error on the ability of Sony to litigate the case fairly, and appears hesitant to second-guess the district court judge who witnessed the entire trial and made a judgment call based on information gathered over the course of time during the litigation.

Immersion countered that any error was immaterial and insignificant, implying that such error should not warrant a new trial. Immersion's counsel also pointed out how little significance the "hidden" prior art document played during trial (e.g., zero references to it by Sony's primary invalidity expert, zero references to it by Sony in closing arguments, etc.). The court questioned the basis for such a conclusion, because how could the hidden piece of prior art play a prominent role at trial when Sony didn't know about it?

While I personally found Sony's arguments to verge on a last ditch effort of a 5 year old whining to a parent "it's not fair," and Immersion's counsel came across a little overconfident (perhaps better prepared?), you never know how the court will rule.

It will likely be months before the court hands down its decision.

Labels: Lawsuits, Patents

It appears that Sony's game controller woes just continue to grow. Fenner Investments Ltd. has sued Microsoft (Xbox 360), Sony (PS2), and Nintendo (Gamecube) for allegedly infringing U.S. Patent No. 6,297,751, which describes a low voltage joystick port interface. The case is Fenner Investments Ltd. v. Microsoft Corp. et al., case no. 06-cv-08, in the U.S. District Court of the Eastern District of Texas. We're adding the case to our tracking list, and we'll keep you updated as we learn more.

Labels: Lawsuits, Patents

Planet Bingo v. Gametech International
__ F.3d __ (Fed. Cir. 2006)

Planet Bingo is the exclusive licensee of both the '289 and '786 patents. The patents claim alternative methods of playing bingo by coupling numbers with additional "indicia" or "markings," such as colors or shading patterns. These additional designations overlay a traditional bingo game to produce more winning combinations for more prizes. For example, a player may achieve a classic bingo (e.g., a straight line) and then couple that line with an additional indicator (e.g., a straight line that is also all red) to win a greater jackpot. The additional designations come into play either with markings on the bingo balls in the '289 patent or with a marked bingo flashboard in the '786 patent. The patents also specify that players might make a second, separate wager to access a progressive jackpot. In this type of bingo with wagers, the unclaimed purse in each round carries over to the next game (think Powerball). The bingo hall may also set aside a portion of this second wager to pay winners of the progressive jackpots. Gametech International came along and started producing a similar game, albeit with minor variations.

The Federal Circuit affirmed district court's decision finding non-infringement and invalidity where the district court correctly found that the defendant did not literally infringe the claims, properly refused to find infringement by equivalents, and correctly found certain patent claims invalid as anticipated by a prior art bingo game.

Planet Bingo's exclusive bingo days appear to be near an end. We include this case because the concept could be applied to networked video gaming machines in Las Vegas or elsewhere where gambling is legal.

Labels: Lawsuits, Patents

Sorry we took a bit of a hiatus over the holidays. We're back at work, which includes blogging...

So for those following the Immersion v. Sony case regarding haptic (vibration) feedback patents owned by Immersion and Sony's alleged infringement (i.e., PlayStation 2 controllers that have vibration feedback), today the appeal is being heard by the Federal Circuit Court of Appeals in Washington, DC. The oral arguments are scheduled for 3 P.M. this afternoon. We'll try to give an update afterwards, but it still will be months before a decision is likely handed down.

Labels: Lawsuits, Patents

In today's economy, it is inevitable that any successful product will result in the filing of at least one lawsuit for patent infringement. Nintendo similarly appears to have its first lawsuit based on the Wii. Interlink Electronics, Inc., owner of U.S. Patent. No. 6,850,221, filed a lawsuit against Nintendo on December 4, 2006, in the United States District Court for the District of Delaware. The lawsuit alleges patent infringement based on Nintendo's Wii controller.

The '221 patent is entitled TRIGGER OPERATED ELECTRONIC DEVICE. We will keep you posted as we learn more regarding this lawsuit. All claims of the '221 patent are reproduced below for your own analysis and reading pleasure:

1. A portable, trigger operated pointing device for use with an electronically responsive system, the pointing device comprising: a housing for location at least partly between a first finger and a thumb of a user's hand, the housing having a generally straight, elongated profile defining a longitudinal axis and having a forward end, a rear end, opposed sides, a top face, and a bottom face, the bottom face including a contoured step positioned medially of the forward and rear ends and transversely of the opposed sides, the contoured step having a first face for generally providing a rest location for the first finger of the user's hand; an electronic circuit mounted on a board contained within the housing, the board having first and second opposed sides, the electronic circuit including a first switch on the first side of the board, the first switch being responsive to pressure selectively to open and close the electronic circuit such that the electronic circuit generates a first output signal upon operation of the first switch, the electronic circuit further including a second switch on the second side of the board, the second switch being responsive to pressure selectively to open and close the electronic circuit upon operation of the second switch; a first control element mounted with the housing at the first face of the contoured step and operatively connected to the first switch to be responsive to finger pressure such that pressure applied to the first control element causes the first control element to operate the first switch; a second control element mounted with the housing at the top face and operatively connected to the second switch to be responsive to thumb pressure such that pressure applied to the second control element causes the second control element to operate the second switch; and an output signal emitter responsive to an output signal from the electronic circuit to wirelessly emit the output signal for reception by the electronically responsive system.

2. A portable, trigger operated pointing device for use with an electronically responsive system, the pointing device comprising: a housing for location at least partly between an index finger and a thumb of a user's hand, the housing having a generally, straight elongated profile defining a longitudinal axis and having a forward end, a rear end, opposed sides, a top face, and a bottom face, the bottom face including a contoured step positioned medially of the forward and rear ends and transversely of the opposed sides, the contoured step having a first face for generally providing a rest location for the index finger of the user's hand; an electronic circuit mounted on a board affixable to the housing within the housing, the board having first and second opposed sides, the electronic circuit including a first switch on the first side of the board, the first switch being responsive to movement of the user's index finger selectively to open and close the electronic circuit such that the electronic circuit generates a first output signal upon operation of the first switch, and a second switch responsive to movement of the user's thumb selectively to open and close the electronic circuit such that the electronic circuit generates a second output signal upon operation of the second switch, the electronic circuit further including a second switch on the second side of the board, the second switch being responsive to pressure selectively to open and close the electronic circuit upon operation of the second switch; a first control element affixable to the housing at the first face of the contoured step and provided in communication with the first switch, the first control element operative to respond to pressure applied by the user's index finger to operate the first switch; a second control element affixable to the housing at the top face and provided in communication with the second switch, the second control element operative to respond to pressure applied by the user's thumb to operate the second switch; and an output signal emitter affixable to the housing and responsive to output signals provided by the electronic circuit to wirelessly emit the output signals for reception by the electronically responsive system.

3. A pointing device as in claim 2, wherein the second switch is a transducer responsive element.

4. A pointing device as in claim 2, wherein the first control element is located in a position to act as a trigger movable under pressure at least partly towards the rear end, such movement acting to operate the first switch, and the first switch being a mechanical element.

5. A pointing device as in claim 2, wherein the output signal emitter is positioned to transmit in a direction generally along the longitudinal axis from the forward end the output signals provided by the electronic circuit.

6. A portable, trigger operated pointing device for use with an electronically responsive system, the pointing device comprising: a housing for location at least partly between a finger and a thumb of a user's hand, the housing having a generally straight, elongated profile defining a longitudinal axis and having a forward end, a rear end, opposed sides, a top face, and a bottom face, the bottom face including a contoured step positioned medially of the forward and rear ends and transversely of the opposed sides, the contoured step having a first face for generally providing a rest location for the finger of the user's hand; an electronic circuit mounted on a board affixable to the housing, the board having first and second opposed sides, the electronic circuit including a first switch on the first side of the board and a second switch on the second side of the board; a first control element affixable to the housing at the first face of the contoured step and provided in communication with the first switch, the first control element operative to respond to movement of the user's finger to operate the first switch and thereby cause the electronic circuit to provide a corresponding first output signal; a second control element affixable to the housing at the top face and provided in communication with the second switch, the second control element operative to respond to movement of the user's thumb to operate the second switch and thereby cause the electronic circuit to provide a corresponding second output signal; and an output signal emitter affixable to the housing and responsive to output signals provided by the electronic circuit to wirelessly emit the output signals for reception by the electronically responsive system.

7. A pointing device as in claim 6, wherein the first switch is a mechanical switch and the first control element is operative to respond to pressure applied by the user's finger to operate the first mechanical switch.

8. A pointing device as in claim 6, wherein the second switch is a transducer responsive element and the second control element is operative to respond to movement of the user's thumb to cause a change in a condition of the transducer responsive element.

9. A pointing device as in claim 6, wherein the first switch is a transducer responsive element and the first control element is operative to respond to movement of the user's finger to cause a change in a condition of the transducer responsive element.

10. A trigger operated pointing device for use with an electronically responsive system, the pointing device comprising: a housing for location at least partly between an index finger and a thumb of a user's hand, the housing having a generally straight, elongated profile defining a longitudinal axis and having a forward end, a rear end, opposed sides, a top face, and a bottom face, the bottom face including a contoured step positioned medially of the forward and rear ends and transversely of the opposed sides, the contoured step having a first face for generally providing a rest location for the index finger of the user's hand; at least one electronic circuit mounted on a board affixable to the housing, the board having first and second opposed sides, the at least one electronic circuit including a first switch mounted on the first side of the board, the first switch being responsive to movement of the user's finger selectively to open and close the at least one electronic circuit and thereby generate a first output signal, and the at least one electronic circuit further including a second switch mounted on the second side of the board, the second switch being responsive to movement of the user's thumb selectively to open and close the at least one electronic circuit and thereby generate a second output signal; a first control element affixable to the housing at the first face of the contoured step and provided in communication with the first switch, the first control element operative to respond to movement of the user's finger to operate the first switch; a second control element affixable to the housing at the top face and provided in communication with the second switch, the second control element operative to respond to movement of the user's thumb to operate the second switch; and an output signal emitter affixable to the housing and responsive to output signals provided by the at least one electronic circuit, wherein the output signal emitter is positioned to wirelessly transmit from the forward end a transmitted output signal in a direction generally along the longitudinal axis for receipt by the electronically responsive system.

11. A pointing device as in claim 10, wherein the at least one electronic circuit further includes a third switch mounted on the third side of the board, the third switch being responsive to movement of the user's thumb selectively to open and close the at least one electronic circuit and thereby generate a third output signal; wherein the pointing device further includes a third control element mounted with the housing at the top face and operatively connected to the third switch to be responsive to thumb pressure such that pressure applied to the third control element causes the third control element to operate the third switch.

12. A pointing device as in claim 1, wherein the second switch is a transducer responsive element and the second control element is operative to respond to movement of the user's thumb to cause a change in a condition of the transducer responsive element.

13. A pointing device as in claim 1, wherein the electronic circuit further includes a third switch responsive to pressure selectively to open and close the electronic circuit such that the electronic circuit generates a third output signal upon operation of the third switch; wherein the pointing device further includes a third control element mounted with the housing at the top face and operatively connected to the third switch to be responsive to thumb pressure such that pressure applied to the third control element causes the third control element to operate the third switch.

14. A pointing device as in claim 1, wherein the first control element is located in a position to act as a trigger movable under pressure at least partly towards the rear end, such movement acting to operate the first switch, and the first switch being a mechanical element.

15. A pointing device as in claim 1, wherein the output signal emitter is positioned to transmit from the forward end a transmitted output signal in a direction generally along the longitudinal axis.

16. A pointing device as in claim 6, wherein the first control element is located in a position to act as a trigger movable under pressure at least partly towards the rear end, such movement acting to operate the first switch, and the first switch being a mechanical element.

17. A pointing device as in claim 10, wherein the first control element is located in a position to act as a trigger movable under pressure at least partly towards the rear end, such movement acting to operate the first switch, and the first switch being a mechanical element.

18. A pointing device as in claim 17, wherein the second switch is a mechanical switch and the first control element is operative to respond to pressure applied by the user's finger to operate the second mechanical switch.

Labels: Lawsuits, News, Patents

CBC v. MLB, E.D.Mo. (Aug. 8, 2006)