MusicGames – Patent Arcade

Apr

2012

New Case: Guitar Apprentice v. Ubisoft

Case Update: July 2012:

On July 5, Guitar Apprentice filed a notice of voluntary dismissal without prejudice that has ended litigation started earlier in April. An order of dismissal was signed by Judge Samuel H. Mays, Jr. on July 12, 2012. It has not been released whether the two parties have reached a settlement agreement or not.

Original Post:

Guitar Apprentice sued Ubisoft on April 5, 2012, in the Western District of Tennessee for patent infringement of USP 8,119,896. Court docket 2:12-cv-02265-SHM-dkv. The ‘896 patent is titled “Media system and method of progressive musical instruction.” Ubisoft is the publisher of Rocksmith, a game I must admit I LOVE.

Claim 1 of the ‘896 patent reads:

1. A system for progressive musical instruction comprising:

a processor-readable memory medium having software residing thereon,

the software executable by a processor to direct the performance of generating audio signals corresponding to a predetermined musical performance,

the audio signals in a first operating mode including prerecorded sounds from each of one or more musical instruments associated with the musical performance,

the audio signals in a second operating mode including sounds from said instruments with the exception of a predetermined musical instrument; generating display signals corresponding to the musical performance,

the display signals arranged to provide musical instruction to a user relating to playing of the predetermined musical instrument during at least the second operating mode; and

in association with successive iterations of the musical performance, incrementing a duration of the second mode and decrementing a duration of the first mode.

The ‘896 patent was only filed in October 2010, claiming priority to a provisional application file June 30, 2010, so I suspect there is going to be a validity fight based on any prior art out there. For example, I’ve previously posted regarding Guitar Star and Guitar Rising, which Wikipedia (as accurate as it may be) indicates had a public playable demo at Independent Games Conference West on Nov. 5, 2009. I’m not sure of the veracity of this next part, but Wikipedia claims that Rocksmith is the direct commercial result of Guitar Rising.

We will track the case and keep you posted.

Jun

2010

Case Update: Harmonix v. Konami close to settlement

Well it looks like one of the two Harmonix/Konami cases might be settling. In Harmonix Music Systems, Inc. v Konami Digital Entertainment Co, Ltd., civil action 1:09-cv-10206 (D.Mass), the parties on June 1, 2010, jointly filed a status report with the court, indicating:

Plaintiffs Harmonix Music Systems, Inc. and Viacom Inc. (collectively, the “Plaintiffs”) and Defendants Konami Digital Entertainment Co., Ltd. and Konami Digital Entertainment, Inc. (“Defendants”) respectfully inform the Court that they have executed a binding and enforceable Settlement Term Sheet. The parties are currently working to execute a formal settlement agreement. The parties thus respectfully inform the Court that they expect to be able to provide another status report in 90 days.

Looks like they have come to some agreement in this case. Still no word whether the sister case, Konami v. Harmonix, is affected or not.

Jan

2010

Case Update: Konami and Harmonix AGREE on something!

In an interesting development in the ongoing dispute between Harmonix and Konami over the hammer-on technology in the Rock Band/Guitar Hero games, they have filed a JOINT motion to stay proceedings:

Date	#	Docket Text
1/27/2010	57	Joint MOTION to Stay Proceedings by Harmonix Music Systems, Inc..(McConchie, Scott) (Entered: 01/27/2010)

Could a settlement be in the works?

This is only one of two cases between the parties, and the other case is proceeding full steam ahead, with pleading just having been finished with respect to a Summary Judgment motion:

Date	#	Docket Text
1/26/2010	239	ORDER Setting Hearing on Motion 213 MOTION to Strike Defendants’ Supplemental Invalidity Contentions and Preclude the Assertion of Invalidity Defenses Not Properly Disclosed Therein. Motion Hearing set for 2/17/2010 10:00 AM before Magistrate Judge John D. Love. Dispositive Motions due by 2/26/2010 with Responses due March 15, 2010. Signed by Magistrate Judge John D. Love on 1/26/2010. (gsg) (Entered: 01/26/2010)
1/25/2010	238	SUR-REPLY to Reply to Response to Motion re 218 MOTION for Partial Summary Judgment for Indefiniteness filed by Konami Digital Entertainment Co, Ltd., Konami Digital Entertainment, Inc.. (Edelman, Michael) (Entered: 01/25/2010)

So it’s difficult to say what the reason is for the Stay Proceedings motion, but it is interesting nonetheless. That’s it for now. Stay tuned…

Dec

2009

Case Update: No Doubt v. Activision Publishing Inc.

Activision has responded in federal court to a lawsuit originally filed in California state court by No Doubt over Activision’s use of the band’s likeness in “Band Hero.” According to Activision, the case implicates federal copyright law, and thus federal court (rather than state court) is the proper place for the litigation.

Previously, No Doubt sued Activision alleging, among other things, that Activision improperly used digital representations of the band members in unauthorized ways in making “Band Hero,” such as the way that the band members sing and dance in-game.

Now, in responding, Activision is denying all accusations of wrongdoing and arguing that all uses of No Doubt’s likeness are within the licensing contracts obtained from the band before the game’s release. Interestingly, there are also allegations that No Doubt’s contract with Activision does not include certain limits on the scope of the license that the licensing contracts of other artists include.

We will continue to follow this case.

Oct

2009

Back on Stage in the Guitar Hero/Gibson Suit?

Harmonix Music Systems, Inc., along with a host of game retailers, is asking a court in Tennessee to resume proceedings in a patent suit brought by Gibson Guitar Corporation over the “Guitar Hero” line of video games.

The suit was filed by Gibson in 2008, and alleged that the Guitar Hero games infringed U.S. Patent No. 5,990,405, entitled “System and Method for Generating and Controlling a Simulated Musical Concert Experience.” The claims in the patent were generally directed to simulating participation in a musical performance, and included the following language (claim 1) specifying a “musical instrument”:

a. a musical instrument, the musical instrument generating an instrument audio signal at an instrument audio output, the instrument audio signal varying in response to operation of the instrument by the user of the system;

Shortly after the suit was filed, it was stayed (e.g., placed on hold) because the U.S. Patent and Trademark Office (PTO) had decided to open a reexamination proceeding to reconsider the validity of the patent. It is common for courts to stay cases pending reexamination, since the outcome of the reexamination can alter the patent’s scope (or render it invalid altogether).

During the PTO reexamination, the patentee altered the scope of the claim 1 “musical instrument” as follows:

a. a musical instrument adapted for (i) making musical sounds and (ii) generating an instrument audio signal representative of the musical sounds at an instrument audio output, the instrument audio signal comprising an electrical signal output by the musical instrument that varies in response to operation of the instrument by the user of the system;

This change was made after the PTO rejected the original claim as being the same as another U.S. patent (Zimmerman, U.S. Patent No. 5,488,196, entitled “Electronic Musical Re-Performance and Editing System”). The patentee argued that the Zimmerman patent did not show a musical instrument adapted for “making musical sounds” and “generating an instrument audio signal …” as recited in the new claim 1. The PTO agreed, and indicated that it will be issuing the reexamined patent with the new claim language.

Harmonix feels that the Guitar Hero game does not have the kind of “musical instrument” that will be required by the new claim 1. In its motion asking the court to lift the stay, Harmonix indicates that once the stay is lifted, it will file a motion for summary judgment that the Guitar Hero game does not infringe on this basis.

Harmonix also indicated that it will offer a second basis for summary judgment of non-infringement. That second basis comes from a California court’s ruling in another case involving Gibson and Activision, makers of the “Rock Band” game. In that case, the California court concluded that the Gibson patent simply did not cover interactive video games, and Harmonix will ask the Tennessee court to make a similar ruling.

So now we wait and see if/when the parties take the stage again. The motion to lift the stay seems likely to be granted, since the PTO reexamination proceedings are ending. Once the stay is lifted, we will likely see Harmonix’s summary judgment motion, and that may well signal the conclusion of this case. As a caveat, though, the patentee also added a number of new claims to the patent in the reexamination process, and some of those new claims don’t have the “musical instrument” language quoted in claim 1. It remains to be seen whether those new claims become the new center of attention going forward.

The case is Gibson Guitar Corp. v. Wal-Mart Stores Inc., et al., No. 3:08-0279 (M.D. Tenn.), and we’ll keep you posted as we learn more.

Apr

2009

CASE SETTLED: Activision v. Gibson [P]

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.

Feb

2009

Case: Harmonix v. Konami (Mass.)

Harmonix and Viacom jointly filed suit in the District of Massachusetts against Konami for patent infringement. The lawsuit alleges Konami’s “ROCK REVOLUTION” video game infringes U.S. Pat. No., 7,459,624 entitled “Game controller simulating a musical instrument.” The patent issued December 2, 2008 and consists of two independent claims, both of which are methods “for providing [a] realistic interaction by a player with a music-based video game using a game controller simulating a guitar.” The claims appear to relate to music-based video games that simulate a hammer-on or pull-off technique of playing a musical instrument. Specifically, claims 1 recites:

1. A method for providing realistic interaction by a player with a music-based video game using a game controller simulating a guitar and having a strum bar and a plurality of fret buttons, the method comprising: a) displaying to a player first target musical data associated with a musical composition; b) receiving first music performance input from the player comprising activation of a first one of a plurality of fret buttons and a strum bar; c) displaying to a player second target musical data associated with the musical composition, the second target musical data visually indicating to a player that the musical event represented by the second target musical data is amenable to a hammer-on technique; [and] d) receiving second music performance input from the player consisting essentially of activation of a second one of a plurality of fret buttons.

Claim 15, the other independent claim, is similar to claim 1, however, differs in regards to elements (c) and (d), which recite:

c) displaying to a player second target musical data associated with the musical composition, the second target musical data visually indicating to a player that the musical event represented by the second target musical data is amenable to a pull-off technique; [and] d) receiving second music performance input from the player consisting essentially of deactivation of one of a plurality of fret buttons.

The lawsuit is Harmonix Music Systems, Inc. et al. v. Konami Digital Entertainment Co., Ltd et. al., Case No. 1:09-cv-10206-RWZ, U.S. District Court of Massachusetts. We will continue to monitor the lawsuit.

Jan

2009

News: Guitar Hero/Rock Band for a REAL guitar

You know, I’ve been waiting for over a year since I first heard about Guitar Rising, a Guitar Hero style video game that you can play with a REAL guitar. It seems to be the holy grail of interactivity–if you win the game, you have ACTUAL SKILLS you can use in real life to play an instrument. But it never seems to come to fruition. As of this morning, Guitar Rising’s web site still hasn’t changed or been updated to give us any glimmer of hope that a release is forthcoming.

Well it seems someone has now beaten them to the punch: Disney. Yes, THAT Disney. Disney’s Guitar Star will be directed towards tweens at first, but if you can really play it with any guitar, then I might just pick up a copy myself and plug in my own axe. The software with a bundled 3/4 length guitar will be about $200, and available starting summer ’09, but at least its a start!

Now I DO wonder what Gibson thinks about this, in view of their patent portfolio that they are asserting against Activision and the court’s recent claim construction in that case…

Either way, Disney has the money to take a license or defend a lawsuit, so hopefully this product will actually see the light of day!

Sep

2008

Case Update: Activision v. Gibson – Claim Construction

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

Jul

2008

News: Konami sues Viacom over Rock Band

Konami Digital Entertainment Co. v. Harmonix Music Systems, Inc.

No. 6:08-CV-286, (E.D. Tx, Filed July 9, 2008)

Summary by Steve Chang, Esq.

If you build it, they will come. The tagline from Kevin Costner’s baseball film “Field of Dreams” seems appropriate to describe patent litigation. If the industry builds a successful product type, in this case, music-based rhythm games, then competitors will inevitably jockey for position. Patents, being a quintessential tool for protecting innovative market space, are a classic approach to this jockeying.

This jockeying took another step forward this week when Konami, makers of the upcoming Rock Revolution® musical group rhythm game, filed suit against Harmonix, makers of the popular Rock Band® musical group rhythm game, accusing Harmonix of infringing three of Konami’s patents.

Perhaps because Konami has already established itself in the general rhythm game space, with the popular Dance Dance Revolution® and Karaoke Revolution® series of games, Konami appears to have entered the musical group rhythm game space with patents in mind, filing early patent applications on its concepts, and the three in suit are directed to fairly straightforward elements of such games.

The first, U.S. Patent No. 6,390,923, is entitled “Music Playing Game Apparatus, Performance Guiding Image Display Method, and Readable Storage Medium Storing Performance Guiding Image Forming Program,” and generally appears (reading claim 10 of this patent) directed to dividing the game play screen into sections for different instruments, displaying instruction patterns for each instrument, and outputting a sound corresponding to operation of the instrument. Figure 15 from the ‘923 patent shows an example screen.

The second, U.S. Patent No. 6,425,822, is entitled “Music Game Machine with Selectable Controller Inputs,” and (from a short read of claim 1) appears directed to setting different difficulty modes by restricting the number of instrument buttons that will be used to play the game. The cover figure of the ‘822 patent shows an example of changing modes.

The third patent, U.S. Patent No. 6,645,067, is entitled “Music Staging Device Apparatus, Music Staging Game Method, and Readable Storage Medium,” and appears (from a quick read of claim 21) directed towards percussion instrument timing in the game, and to a method of providing players with real-time feedback regarding how well they are doing. The cover image from the ‘067 patent shows the drums and displayed feedback:

Of course, the lawsuit will have to resolve the details of the proper scope of these patents, and Harmonix will certainly seek to challenge the patents’ validity (the patents seem to be based on applications filed as early as 1998). Updates will follow as the case progresses. Formal interpretation of the patent will require a more thorough legal analysis of the patent and its history. The summaries here are just from my initial read.

NOTE: Formal interpretation of the patents will require a more thorough legal analysis of the patent and its history. The initial summaries here should not be construed as formal legal opinions of any kind. Copies of the patents in suit (6,390,923, 6,425,822, and 6,645,067) are available for free from the USPTO web site or from Google patent search.

Copy of the complaint: KonamiComplaint.pdf

Feb

2008

Case: Romantics v. Activision (E.D.Mich) – Publicity

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.

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