P.S. Products and Billy Pennington v. Activision Blizzard, et. al.
United States District Court for the Eastern District of Arkansas
File No: 4:13 cv 342 KGB, filed on June 5, 2013

P.S.Products and Billy Pennington are bringing suit against Activision Blizzard, Activision Publishing, and developer, Treyarch Corporation for design patent infringement.  The complaint with jury demand, filed on June 5, 2013, seeks declaratory judgment stating that Defendants are infringing upon United States Patent Letter No. US D561, 294 S (“US D561, 294 S”) as well as money damages.

Plaintiffs are the manufacturers of stun guns and other personal security devices.  On February 5, 2008, the United States Patent and Trademark Office issued patent no. US D561, 294 S for a “one-of-a-kind” stun gun marketed as the “Zap Blast Knuckle”. This product has a form factor similar to that of a pair of brass knuckles and is capable of discharging up to 950,000 volts.The complaint alleges that Defendants infringed upon this patent due to the release of their massively successful game Call of Duty: Black Ops II(“Black Ops II“) which contained “illegal images” of the product.  Plaintiffs maintain that Black Ops II was the highest grossing video game of 2012 with over $1 billion in revenue.  Within the campaign of the game, players may equip “Combat Suppression Knuckles” or “Galvaknuckles” which are alleged to infringe upon Plaintiffs’ patent. These in-game weapons emit an electrical shock in the same way that Plaintiffs’ “Zap Blast Knuckle” product does in reality. Plaintiffs also allege that Defendants had
constructive notice of the patent since it was properly filed an the applicable statutory notice requirements were satisfied.

Plaintiffs argue that by including the in-game weapons they are actively infringing upon their patent, and that they continue to do so because Black Ops II is still being produced and put into commerce.  Furthermore, by providing copies of the game to retailers, Defendants are contributing to, and inducing, patent infringement by others.

Along with a declaratory judgment affirming that Defendants are infringing, Plaintiffs seek reasonable royalties, partial profits from the game, enhanced damages for willful infringement and attorneys fees and costs.

This poses an interesting question for the court to decide.  Video games are becoming closer and closer to photo-realism with each subsequent generation. Along with this increased graphical fidelity, developers want to add as many realistic elements to a game as possible, but how far is too far?  Is the depiction of products created by others in reality an infringement upon a patent for a physical item?  Depending on the result, developers may need to find a way to add realism without using real-world analogs.However, this is not that case. The differences between the design patent and virtual good used in the game are readily apparent to even the most casual observer. It appears that the design patent owner is trying to protect the functionality of the depicted product, which a design patent cannot do.  So we will wait until another time to get our answer.

We’ll continue to monitor for this case for any developments.

Edited By: Alex Nealon

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