United States District Court for the Western District of Washington
Case No. 2:08-cv-01579-RSM, Filed October 27, 2008
On July 9, 2009, ADC filed a motion for stay of proceedings pending the outcome of reexamination proceedings ADC initiated in the USPTO with respect to each of the five patents-in-suit. On July 21, 2009, the court entered the stipulated motion to stay the proceedings pending the outcome of requests for reexamination. Plaintiff was ordered to file a status report every six months advising the court of the progress of the reexamination requests. The third and latest status report was filed on January 20, 2011. Plaintiffs are still awaiting reexamination at the PTO.
Case Update 3/25/09:
In a previous post, we reported on the filing of this patent lawsuit regarding pay-for-download software over a computer network, e.g., including games. Well it appears that Sony is out of the lawsuit, and Microsoft & Nintendo remain. The dismissal was voluntary by ADC, as Sony never made an appearance in the lawsuit. The dismissal is also without prejudice, which means that ADC could refile a lawsuit against Sony regarding these same patents in the future. In interesting twist, to be sure. If we find out more, we’ll let you know.
ADC Technology on October 27, 2008, filed a new patent infringement lawsuit against Microsoft, Nintendo, and Sony, alleging that each of the Xbox360, Wii, and PlayStation3, respectively, infringe on one or more of 5 different patents owned by ADC. The case was filed in the Western District of Washington, and is captioned ADC Technology, Inc. v. Microsoft Corp. et al., and is case number 2:08-cv-01579. Here is a copy of the complaint: ADC.pdf
The patents in suit are:
- 5,775,995: Interactive Communication System for Communicating Video;
- 6,193,520: Interactive Communication System for Communicating Video Game & Karaoke Software;
- 6,488,508: Interactive Communication System for Communicating Video Game & Karaoke Software;
- 6,702,585: Interactive Communication System for Communicating Video Game & Karaoke Software; and
- 6,875,021: Interactive Communication System for Communicating Video Game & Karaoke Software.
The patents appear to relate to remote distribution of software to terminal devices. For example, claim 1 of the ‘021 patent reads:
1. A software distributing system for
transmitting at least one of the program, the data, and a combination of the program and data stored in a database provided in a distribution center to a requested communication terminal device via communication lines;
storing the transmitted program, the data, and the combination of the program and data in a memory provided in the communication terminal device; and
enabling execution of the program or data processing according to the program, the data, and the combination of the program and data in the memory,
said distribution center comprising:
a transmitter device for transmitting the program, the data, or the combination of the program and data at the request of said communication terminal devices to said communication terminal device; and
a charging device for charging a fee for at least one use of the transmitted program, the data, or the combination of the program and data in said communication terminal device.On its face the claim appears to cover software downloads where the user pays for the download. There is nothing in the claims limiting this to game console use, and ostensibly could apply to any pay-for-software dowloads, e.g., PC downloads over the Internet, which have been going on for years. The ‘021 patent has a priority date at least dating back to 1998, and possibly back to 1994, which could explain the apparent broadness of the claims. Thus, while ADC appears to have broad claims, that makes it easier for the defendants to try to invalidate the patents. However, the early priority dates of the patents will make it more difficult for the defenedants to find prior art to be able to do so. Nonetheless, with software and media downloads now playing a principal role as the console makers each try to make their console the primary “living room device,” this lawsuit is sure to heat things up.
I have not studied the patent specifications in depth, and this is just my initial cursory thoughts. The opinions in this article are not legal opinions of validity, invalidity, infringement, or noninfringement, but are rather intended as a general introduction to the issues. We will add this case to our tracker list and keep you posted.