We wanted to let everyone know that we have a new book in the works, tentatively titled “The Business of… Video Games!” This is a self-help introduction to legal issues that smaller, startup, and independent developers face, from intellectual property to contracts to managing risk to business formation to publishing. If you are “in the industry” and might be willing to review an advance copy and provide a quote about the book in exchange for a free copy once the book is published (tentatively scheduled for July/August 2011), please send me an email (rdannenberg -at- bannerwitcoff -dot- com).
Hey everyone, we’ve been a little behind lately, but good things are in store. The Patent Arcade’s own, Ross Dannenberg, will be speaking at Penny Arcade Expo (PAX) East this Friday in Boston, at 1:30 PM. Come on by and listen, ask questions, and generally help stir things up!
Also, we have a new research intern starting this summer, and we plan on posting a major update to our video game patent database by the end of the summer. So stay tuned, good things are coming soon!
Banner & Witcoff’s IP LawyerTM is an iPhone application providing iPhone-customized full search access to patents* and trademarks issued by the United States Patent and Trademark Office as well as corresponding assignments. Banner & Witcoff’s IP LawyerTM also provides a comprehensive library with up-to-date Patent Local Rules for district courts throughout the country, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the Manual Patent Examination and Procedure, the U.S. Constitution, 37 C.F.R., links to international patent offices, and additional tools and resources.
*Patent search limited to accuracy of Google Patents’ data.
Kotaku’s full census results are in, and there are some interesting points…
– 65% of you own multiple consoles, while a quarter of participating Kotaku readers are in possession of all three current generation machines. – Only 5% of participating readers own a PSPgo console. Sorry, Sony. – 66% of participating readers have reported that at least one Xbox 360 console has failed on them, while 32% report multiple failures.Re Pirates:- 51% of participating readers have pirated a console game – 40% of participating readers have pirated a handheld game – 79% of participating readers have pirated a PC game. 79%!Re the PC:- 42% of you don’t play any kind of MMO whatsoever. – 78% of participating readers have bought games digitally. – Steam dominates the digital download market amongst participating Kotaku readers – Only 19% of you can play Crysis as nature intended. – Only 6% of participating readers are PC snobs, 94% of you playing games on at least one other system. – A lot more of you would take Valve over Blizzard.Re Favorite Games:
– You prefer Mass Effect to Halo. – Asking for “favourite franchise” on PC was a stupid idea. – You prefer Zelda to Mario – Smash Bros. is more popular a fighting game than Street Fighter amongst participating Kotaku readers. – Modern Warfare 2 may have the sales records, but its predecessor is your favourite Call of Duty game.Re the People:- You play an astonishing variety of games. – Nearly 60% of participating readers don’t play any kind of sports game. That’s surprising. – 46% of you spend most of your time alone, with singleplayer games. – Nearly half of participating readers have packed their music game instruments away, no longer playing games like Rock Band or Guitar Hero.Full results can be found here.
If you’re planning to attend the 2010 Triangle Games Conference in Raleigh, NC, please stop by and say ‘hello’!
Steve, Ross, and Shawn are presenting a panel on recent developments in video game lawsuits, and lessons game developers can learn from them. Our panel’s at 9:30am on Thursday.
And while you’re here, check out the many other presentations and events on the business and development of video games. The speaker agenda is here:
See you there!
For attorneys, this is the one annual conference that IP lawyers cannot afford to miss. Now in its 25th anniversary year, the Annual Intellectual Property Law Conference of the ABA Section of Intellectual Property Law provides a gathering of the foremost authorities on the state of intellectual property law, including judges, government officials, in-house counsel, academics, and private practitioners. The conference is April 7-10, 2010, at the Crystal Gateway Marriott in Crystal City (Arlington), Virginia.
Pick up an entire year’s worth of CLE credits during the 2 ½ days of quality IP programming on the issues critical to your practice. Some program highlights include:
- The future of patent reform
- ITC IP mediation project
- Google books settlement
- Defending depositions in trademark cases
- Duty of disclosure to USPTO
- Patent damages
- Opinion of counsel
- Legal aspects of social media marketing
- Venue transfer & forum selection
- Interfacing with clients
The conference will also feature ample opportunities to network with your IP colleagues, whether at our Young Lawyers Welcome Reception, Corporate Counsel Reception, Women’s Networking Dinner, or the popular reception at the Dolley Madison House at the U.S. Court of Appeals for the Federal Circuit. In addition, a very special 25th Anniversary Gala Dinner with entertainment and dancing is planned to fete a quarter century of this preeminent conference. Registration details will be available on the website soon.
Hey everyone, if you’re at GDC 2010, I will be speaking at the following two sessions:
Video Game IP – What You Need to Know NOW
Speaker: Ross Dannenberg (Partner, Banner & Witcoff, Ltd)
Date/Time: Thursday (March 11, 2010) 9:00am — 10:00am
Location (room): Room 130, North Hall
Track: Business and Management
Format: 60-minute Lecture
Experience Level: All
Intellectual property can be a powerful asset for any company, young or old. Trademarks protect your brand; copyrights protect your content; and patents can be used to broadly protect your ideas, while company critical information can be safeguarded as a trade secret. However, companies must perform certain actions in order to enforce their IP, because some forms of IP require that certain steps are taken at specific times or a company might inadvertently dedicate its IP assets to the public. Don’t let this happen to you! This seminar will discuss what you need to know NOW to protect your intellectual property, and will discuss proactive steps you can take to ensure that you maximize your intellectual property rights in your video game and software.
Any video game developer interested in IP. However, the seminar will concentrate on proactive steps that smaller companies can take so they can effectively compete with the big boys in the intellectual property arena.
Steps companies (and individuals) can take to ensure that they don’t inadvertently give away their intellectual property or dedicate their intellectual property to the public domain.Speaker Evaluations None available.IGDA: Intellectual Property Rights SIG
Speaker: Ross Dannenberg (Partner, Banner & Witcoff, Ltd)
Date/Time: Saturday (March 13, 2010) 9:00am — 10:00am
Location (room): Room 228, East Mezzanine
Track: Business and Management
Format: 60-minute Roundtable
Experience Level: All
The roundtable will include a discussion of proactive steps that young companies should take to ensure that they don’t inadvertently donate their IP to the public domain, and will include plenty of Q&A time to answer questions posed by the audience. The roundtable will include perspectives offered by successful independent game developers, and will include a discussion of resources and topics managed by the IGDA’s IP Rights Special Interest Group. Old, new, and non-members welcome!Speaker Evaluations None available.Hope to see you there!
The Patent Arcade is pleased to announce that a new book co-edited by our own Ross Dannenberg (i.e., me), and partly authored by our own Steve Chang, is now available for purchase from the ABA website:
Computer Games and Virtual Worlds: A New Frontier in Intellectual Property Law
By Ross A. Dannenberg, Steve Mortinger, Roxanne Christ, Chrissie Scelsi, and Farnaz Alemi – Editors.
Will provide publication/purchase info when available.
Every gamer has anxiously awaited this message to appear – you may have just beaten the final boss level after several unsuccessful attempts or you may have finally beaten a friend’s high score. As we all know, bragging rights are useless until you can prove it. Thus, we anxiously await this very message or something similar. While this message is often the saving grace, there are times when this message provides false security. For example, the memory may be corrupt. While displeasing enough, losing earlier progress on that particular game only adds insult to injury.
According to the Patent Office records, Nintendo may have protection on certain methods and systems that ensure that a failure to save recent data will not also result in the loss of earlier game data. On February 2, 2010, the U.S. Patent and Trademark Office issued U.S. Pat. No. 7,654,904, entitled “Game machine, backup control program of game data and backup control method.” The patent notes that “preventing [the] loss of game data obtained by progressing through a game for long hours is critical for the player.” Independent claim 9 appears to be targeted towards a method that ensures that the previous saved data from the game is not overwritten if the most recent attempt to save updated game data is not successful. The claim recites:
9. In a game machine having a nonvolatile memory, said memory including a plurality of electrically rewritable game data backup storage areas, a method of backing up game data, comprising:
generating latest game data corresponding to latest conditions in a game being played;
designating one of said game data backup storage areas that contains an oldest written game data relative to game data written in other backup storage areas as a write-objective target for storing said latest game data and, when a write attempt to a first write-objective target is unsuccessful after a predetermined number of attempts, designating another write-objective target of next oldest written data; and precluding a writing of said latest game data into said another write-objective target and prohibiting further attempts to write to said backup storage areas when an attempt in writing to said first write-objective target backup storage area is unsuccessful after a predetermined number of repeated unsuccessful attempts and said another write-objective target contains the only remaining instance of saved older game data; and
causing said game machine to display an error message indicative of an unsuccessful saving of said latest game data and/or a broken backup storage memory condition, wherein a failure of a memory element in said electrically rewritable non-volatile memory does not result in an attempt to store game data in a last remaining backup area containing older game data.
I usually don’t report press release type stuff, but the LES is an important part of game development. Namely, licensing content is a HUGE part of game creation, design, and development. I should also mention that, while I am not actually a member of this group, others in my firm are. So without further ado…
Serving Members and Promoting the Business of Intellectual Property
Alexandria, VA, January 19, 2010—The Licensing Executives Society (USA & Canada) Inc., is celebrating 45 years of leadership in the business of intellectual property (IP) and licensing with the kick-off of a multi-faceted membership awareness campaign designed to recruit new members and encourage membership renewal through exciting programs and incentives.
In honor of its 45th Anniversary, LES is offering members who join before March 31, 2010 a $45 discount on their first year’s dues, a $25 gift card and complimentary attendance at a local LES chapter event. Join now by downloading the membership application at www.lesusacanada.org/45anniversary and emailing to email@example.com or faxing to 703.836.3107. (Enter promo code LESPR45).
LES is the leading association for professionals involved in the transfer, use, development, manufacture and marketing of IP. It’s unique among professional group because it draws IP leaders from an array of business backgrounds and from across industry sectors. This diversity provides members with highly valuable business connections and world-class professional development opportunities.
“LES is a welcoming community that empowers, connects and celebrates IP professionals,” said Paul Roberts, Vice President for LES Membership. “Whether you’re a veteran or brand new to the field, LES has the reach, global perspective and resources to provide the tools IP professionals need to survive and thrive in today’s competitive marketplace.”
In addition to the advantages provided by its diverse membership in terms of deal making, information sharing and problem solving, LES offers its members unparalleled professional education programs, including the LES Professional Development Series (PDS), and the Certified Licensing Professional Program (CLP).
Through LES, members not only develop lifelong professional and personal relationships, but also build valuable professional networks through LES meetings and Industry Sector Groups, local chapter events, online social media networks and global membership directory. They also receive first-class publications and resources, such as les Nouvelles, the leading international technology transfer and licensing journal of LES International, eNews bulletins, Viewpoints bi-monthly newsletter and original benchmark industry data on deal terms, royalty rates and other aspects of IP business.
In 2010, LES members will enjoy an expanded lineup of new programs designed to further enhance their LES experience.
- Linking Entrepreneurship and Technology Commercialization: IP for Entrepreneurs & Universities: In keeping with its 2010 theme of “Deals, Deals & More Deals,” the LES (USA & Canada) Spring Meeting will focus on deals in the entrepreneurial and university spaces, known to be hotbeds for innovation and technology advancement. The meeting will be held in Boston, MA, May 18-21.
- Around the World with LES: A global series of networking and educational events to be held On April 26th spanning five continents, in conjunction with WIPO’s World IP Day.
- LES Monthly Webinar Series: In addition to the eNews and expanded use of social networking vehicles to keep members informed, LES will also host monthly webinars for members who want to learn more about IP issues and mechanics in the convenience of their offices. Internal negotiations are often as difficult as negotiating with parties across the table. This will be the focus of February’s webinar, Internal Negotiations: “We have met the enemy and they are us!”
For more information on these and other LES events, please visit www.lesusacanada.org and JOIN NOW by downloading the membership application at www.lesusacanada.org/45anniversary and emailing to firstname.lastname@example.org or faxing to 703.836.3107. (Enter promo code LESPR45.)
Contact: Lydia Steck, TheCommunicator@comcast.net
With the growing popularity of video game systems such as Nintendo’s Wii, Sony’s Playstation 3 and Microsoft’s Xbox 360, it seems that all sorts of patent holders are coming out of the woodwork to share in a piece of the profit pie. In what is undoubtedly another case of unwanted attention, Nintendo, Sony and Microsoft have been sued by Eleven Engineering, Inc. (“Eleven Engineering”) in the District of Delaware for allegedly infringing three patents: U.S. Patent Nos. 6,238,289 (‘289 Patent), 6,346,047 (‘047 Patent) and 6,684,062 (‘062 Patent). Each of the patents pertains to wireless game control devices. Eleven Engineering’s complaint specifically identifies Sony’s DualShock and Sixaxis wireless game controllers, Nintendo’s Wii Remote and Balance Board and Microsoft’s Xbox 360 Wireless Controller and Wireless Racing Wheel as allegedly infringing products.
‘289 Patent – “RADIO FREQUENCY GAME CONTROLLER”
The ‘289 Patent is directed to adjusting a frequency of a wireless controller when weakness in signal strength is detected. One or more of the keys on the controller may further be used to manually change the frequency. Additionally, the game controller may include an indicator light that conveys signal strength by amount of time it is on (e.g., a constant “on” light would indicate strong signal strength whereas an intermittent light would indicate a weaker signal strength). Claim 1 is reproduced below as an illustrative example of the ‘289 Patent’s scope:
1. A game controller for communication between a user and an electronic game device transmitting signals to a receiver, comprising: a portable housing; game controller keys attached to said housing for permitting the user to generate signals; a radio frequency sender engaged with said game controller keys for transmitting the signals to the receiver; and a controller attached to said sender for determining a selected parameter regarding the signals and for communicating said parameter to the user.
A point of contention between the parties may involve whether any of the accused controllers communicates a signal parameter to the user. Note that the claim does not require the controller to specifically include an indicator light.
‘047 Patent – “RADIO FREQUENCY GAME CONTROLLER”
The ‘047 is similarly directed to radio frequency communication between a game controller and a game console device. In contrast to the ‘289 Patent, the claims of the ‘047 Patent are directed to the transmission of radio frequency signals from a game controller using time domain multiplexed transmissions. Thus, whether Sony, Nintendo and Microsoft infringe the ‘047 Patent may include a determination of whether their wireless controllers use time domain multiplexing transmission protocols. Claim 1 is reproduced below for reference.
1. A game controller system communicating between a user and an electronic game device, comprising: a portable housing; a sensor attached to said housing and responsive to operation by the user to generate signals; a radio frequency sender engaged with said sensor, wherein said sender transmits said signals with time domain multiplexed transmission; and a radio frequency receiver engaged with the electronic game device for receiving the signals from said radio frequency sender.
‘062 Patent – “WIRELESS GAME CONTROL SYSTEM”
The ‘062 Patent is generally directed to a wireless system for video game control that allows one or more wireless controller to concurrently communicate with a base transceiver. The benefits touted by the ‘062 patent include advantages in the areas of latency, reliability, power consumption and cross platform compatibility. The ‘062 Patent includes 2 independent claims. Independent claim 1 is directed to a combination of features including automatic channel/frequency adjustment and signal transmission using synchronous time domain multiplexing. Independent claim 13, on the other hand, is directed to controller-base transceiver compatibility and suggests a system that offers compatibility amongst multiple types of controllers and base transceivers. The issues surrounding the ‘062 Patent are likely to be more complex and infringement harder to demonstrate than for the other two asserted patents.
It is no secret that Microsoft, Nintendo and Sony have seen their fair share of gaming technology lawsuits in the past several years. For example, both Microsoft and Sony were sued by, and ultimately settled with, Immersion Corp. for use of force feedback technology in their controllers, while Nintendo entered into an out-of-court settlement with Hillcrest Laboratories for its motion sensing controllers earlier this year. Given Microsoft, Nintendo and Sony’s history of IP troubles involving its controllers and video game systems in general, it will be interesting to see whether the parties settle or decide to go the distance.
The case is Eleven Engineering, Inc. et al. v. Nintendo Co., Ltd. et al., Case No. 1:09-cv-00903-UNA (D. Del. filed Nov. 25, 2009). This is more of a hardware case, so we are not actively tracking it further.
A colleague from across the pond, David Musker of RGC Jenkins, forwarded to me an interesting (and humorous) article that he wrote back in 2007. It’s a funny tongue-in-cheek perspective on the technical effect test used in Europe with respect to patentability of business method and software patents. The article uses the fictitious world of “Wasted Life” to illustrate his points, and instead of using business methods, the allegedly patentable (or unpatentable) subject matter is BEER. A good read.
Engage! Expo, taking place September 23-24 at the San Jose Convention Center, provides insight into the best practices, current trends, and effective strategies of social media and user engagement. They have 200 free expo-only passes available. This is a great chance to walk the floor and get some fantastic networking in. First come-first serve. Grab one before they’re gone. Full show details are here at http://www.engageexpo.com/sj2009/
A colleague of mine, Mikko Manner, recently published an article regarding Pirate Bay in the Entertainment Law Review. The article begins, as you may know:
On April 17, 2009, the District Court of Stockholm, Sweden announced its verdict in the so-called ‘‘Pirate Bay case’’1 against four individuals associated with a file-sharing website and service called The Pirate Bay, directed at the file-sharing community. The court found all four guilty of contributory copyright infringement, and each was sentenced to one year in prison. In addition to imprisonment, the defendants were ordered to pay damages in the amount of 30 million Swedish kronor ($3.6 million, 2.7 million Euros) to a handful of entertainment companies, including Sony Music Entertainment, Warner Bros, EMI and Columbia Pictures, for the infringement of 33 specific movie, music and gaming titles.
Read the entire article here.
Hey everyone, we just wanted to take a moment and give a big THANK YOU to rising 2L GWU law student Jackie Unger, who has been helping out over the summer. All those posts by “Patent Arcade Staff”, well, that’s Jackie. She’s done a tremendous job and, I dare say, learned a thing or two in the process! I think we’ve even converted her as a gamer, because I loaned her an Xbox360 and haven’t seen it since… 😉
Good luck next year!
-Ross & Steve