Not surprising in view of the court’s claim construction that heavily favored Activision, it appears that Gibson and Activision have settled this case. Judge Pfaelzer of the District Court for the Central District of California, on April 17, 2009, entered an ORDER RE DISMISSAL. Activision and Gibson filed a Notice of Settlement and Stipulation of Dismissal With Prejudice, in response to which the court dismissed the case with prejudice, meaning that is cannot be refiled, and the case is CLOSED. While details of the settlement are unknown, I’m willing to bet heavily that the settlement favors Activision. Gibson would have had a herculean task in trying to convince the judge or an appellate court to overturn the Markman order construing the claims with respect to musical instruments. If I find out details of the settlement, I will update this post. We’re otherwise removing this one from the tracker list, and we’re done.
As previously reported, Gibson asserts that Activision’s Guitar Hero franchise infringes on some Gibson patents. Gibson’s patent claims a “musical instrument” that produces an “instrument audio signal.” Naturally, in view of Guitar Hero only useing a controller SHAPED like a musical instrument, and only producing inputs based on button presses, construction of these terms is critical to this case. Well the claim construction order is in.
Gibson proposes a broad construction of the terms that would require that a “musical instrument” need only “indirectly produce music” and perhaps have no more than a mere appearance “that corresponds to a specific type of instrument used in the musical performance.” In Gibson’s view, the musical instrument need only be capable of producing an “instrument audio signal” that is “representative of the sounds intended to be made by operating the musical instrument” or “corresponds to the instrument used to create a separated soundtrack.”
Activision proposes a much narrower construction. It would define “musical instrument” as a “traditional musical instrument,” though Activision never provides a coherent definition of “traditional.” Under Activision’s construction, an “instrument audio signal” must be both “audible” and representative of the sounds made by the instrument.
The Court held that the patent requires that a “musical instrument” must be capable of (1) making “musical sounds,” (“musical sounds that would be made . . . by a specific musical instrument”); and (2) either directly, or indirectly through an interface device, producing an instrument audio signal representative of those sounds. (“musical instruments which either directly, or indirectly through an interface device, will produce electrical audio signals”). The Court also determined that the patent establishes that the two requirements are distinct; and, in particular, that the instrument must be capable of making musical sounds independent of the mechanism that outputs the instrument audio signal.
Given this detailed definition of “musical instrument” (and its inherent constraint on the signals produced), the Court found that an “instrument audio signal” need only be construed as “an electrical signal output by a musical instrument.”
Unless Gibson can get this claim construction overturned, or unless they can prove that a Guitar Hero controller makes ACTUAL SOUND, this case appears to be effectively over.
Here is a copy of the claim construction order: 146.pdf
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.