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Patent Markings May Spell Trouble For Activision
eldavojohn writes "If you pick up your copy of Guitar Hero and read the literature, you'll notice it says 'patent pending' and cites a number of patents. A group alleges no such patent pends nor are some of the patents applicable. If a judge finds Activision guilty of misleading the public in this manner, they could become liable for up to $500 per product sold under false patent marking. The patents in question seem to be legitimately Guitar Hero-oriented, and little is to be found about the mysterious group. The final piece of the puzzle puts the filing in Texas Northern District Court, which might be close enough to Texas Eastern District Court to write this off as a new kind of 'false patent marking troll' targeting big fish with deep coffers."
I invented trolling for false patent markings (patent pending).
Karma fed to this user will be promptly burnt. Be warned; be wary.
Guess someone in the patents-cubicle zoned out and forgot to follow up on his email properly..
"Oh those patents, yes, they're sent off..."
"What are those patentnumbers, we need them for printing.."
*searches inbox on 'patent issue'* "Here's a list, let me put it in excel for you.."
"kthx!!"
I think we can keep recursing like this until someone returns 1
... numbers from Patent Hero, the newest game from Activision - you play along with the patent process but aren't really applying for them?
You hold the pen. You fill out the forms. You are the Patent Hero!
As the article notes, these have become common lately. Groups going under names like the one here, "Patent Compliance Group", spend their time digging through product literature looking for "patent pending" claims, and then dig to see if a patent really is pending. In some small percentage of cases, it isn't, and they hope to make enough money on those to justify the endeavor.
I mean, I don't like false advertising, but somehow this particular cure seems even worse than the relatively minor disease of a game claiming it has a patent pending when it doesn't. Given that anyone can file a patent for pretty much anything, it's not like "patent pending" is worth much as a claim anyway.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
The final piece of the puzzle puts the filing in Texas Northern District Court, which might be close enough to Texas Eastern District Court to write this off as a new kind of 'false patent marking troll' targeting big fish with deep coffers.
Troll? Hardly. The Electronic Frontier Foundation routinely files lawsuits like this one on the public's behalf. Compare PCG's lawsuit against alleged patent fraud to EFF's investigations and other actions against alleged copyfraud. So what's the big difference between a "false patent marking troll" and EFF?
So you go pick up your stand alone disc of Guitar Hero and there's no plastic drum with it because you bought just the disc or maybe the guitar-only distribution.
The 457 patent also appears to be a software patent covering the method of play of Konami's DrumMania. The Guitar Hero and Band Hero games from World Tour on contain code implementing the DrumMania methods, even if the controller isn't bundled.
they could become liable for up to $500 per product sold
What you mean is, "they will be liable for up to a $5 credit towards Activision titles per product sold", right? That's how it always seems to pan out.
If hardware is required to have related patents listed on the product, shouldn't software need these markings? What a mess that would spell.
"Patent pending" is enough for some people to think they shouldnt use the idea at all.
"Patent pending" is enough to hinder innovation and stifle creativity.
If someone can go after these companies marking everything as "patented", even with false claims, I say go for it.
Our forefathers must be heating up in their graves as their rolling per minute increases.
Who are these pricks anyway, patenting stuff. It's like nobody else should come up with an idea, because that has never happened before.
Total and utter pricks and fools, because the economy and innovation is hurting because of patents.
If hardware is required to have related patents listed on the product, shouldn't software need these markings? What a mess that would spell.
Until Unisys's LZW patent expired, every major non-free paint program had "Licensed under U.S. Patent 4,558,302 and foreign counterparts" in its about box.
Well, the obvious difference is that most of the EFF actions in the article you linked to involve them defending people who have actually received DCMA takedowns
Activision produces Guitar Hero series under license from Konami, owner of patent rights in the Guitar Freaks and DrumMania franchises. Konami already managed to sue Roxor Games into oblivion for In the Groove, a spiritual sequel to Dance Dance Revolution.
Also, from what I can tell, EFFs purpose of suing isn't to line their own pockets, but to strike down invalid patents and patent claims because it stifles innovation.
How do you know the plaintiff in this case isn't acting on behalf of some video game developer that wants to make another guitar game?
Activision Rocks on. This material is copyright protected
Are they a 'false patent marking troll' for going after Activision? Or is Activision the troll for covering their products with misleading patent information? Or are they both trolls? Seems like it should be some sort of patent regulatory body that prosecutes such things; what are they up to?
"Covered by one or more of the following patents..." seems to me they have their ass covered
I was wondering why a third party would be bringing legal action against Activision for allegedly violating federal patent law because it seemed to be a criminal, not a civil case. Then I look up the definition of "qui tam"
Qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed (from wikipedia).
Well, if the "Patent Compliance Group, Inc." is defending Roxor, or if they are going after Konami
If PCG is working on behalf of a video game developer, then my first guess is that PCG is 1. going after Activision for Activision's patents and 2. going after Activision for the patents it licensed from Konami as a first step toward going after Konami.
So Activision is being sued because they put "patent pending" on a product that doesn't actually have a patent pending. Ok, with you so far.
But then the summary adds this:
The patents in question seem to be legitimately Guitar Hero-oriented, and little is to be found about the mysterious group.
If there are patents in question, then ... why are they being sued? Either they have pending patents or they don't, right?
Comment of the year
This reminds me of the 'Abmanhnungen' in Germany. In both cases it's gaming the system and should be severely punished...
For many years in Germany attorneys have gamed the system, related to what you are allowed and not allowed to do esp. when selling something. These 'people' have for example scoured ebay ads, and when they found say a missing telephone number or missing note on how to undo the deal for a business seller, they sent such a 'Mahnung'. Not for free obviously, no, with an invoice for payment (for their own time/effort!). Yes, you will have to pay... It gets even worse. Suppose you've got an old magazine with old demo software disk on it and put it on ebay.de (as a German, I don't think you can be touched if not), then you'd better check there are no programs on there that are now forbidden. DVD copying software for example that circumvents the protection scheme is no longer allowed since several years.
People have been sent a 'Mahnung' for putting a mag with such no longer allowed software on ebay, and had to pay large amounts of money to such 'scammers'. You think you get a few euros, but you have to pay many hundreds. Nice.
These people are the worst kinds of assholes around just as the guy I mentioned in a previous posting, 'Pieter Lakeman' (who created a foundation supposedly to help clients of the DSB bank with supposedly bad loans, but in reality this foundation just pays his 300 euro/hour salary and there were hardly any bad loans anyway; He then influenced people to take away their money from DSB which led to its collapse. Nice!), and I consider them to be legal scammers.
See for one notorious guy, who was sentenced to jail for other things, this page (it didn't end well for him and I don't think many people will give a damn, he was really hated as one can see in many forums...): http://de.wikipedia.org/wiki/G%C3%BCnter_Freiherr_von_Gravenreuth
Now, don't anybody dare to mod this as offtopic!
Most people who play Guitar Hero don't realise that Konami (UUDDLRLRBABAStart?) did all of this guitar and drum game stuff almost 10 years before Activision with games called GuitarFreaks and DrumMania.
A few years back back when R0x0r Games, a company noted for making linux based games, decided to make their own DanceDanceRevolution knock-off game, titled 'In The Groove', they got sued by Konami. Since then, I believe they had to sell the ITG franchise off to a Korean company named Andimiro, who got away with making a DDR clone called 'Pump It Up' for years.
Konami was well ahead of everyone with patenting all of the technology for the various controllers. It's how they've been able to sue other game companies making these clone games.
Stamping "Patent Pending" on a product has no legal effect. It just makes you feel good.
Okay, to recap what is actually happening for insane people who have no reading comprehension: No one is going after any patents whatsoever.
Some extraneous 'patent pending' numbers were printed on software boxes. No one has even slightly indicated that anyone would attempt to 'enforce' said patent-printing mistakes, or that other people wish to use said patents on their software, because the patents do not even relate to software.
Again: There are no actual patents involved at all. The 'offense' was a box that asserted that various pending patents applied to it, when they clearly do not, and no one is even slightly asserting they do. No one is attempting to enforce any patents, no one is attempting to strike down any patents. The patents mentioned will remain valid (For the things they actually apply to) even if this suit succeeds.
Apparently, falsely claiming you have a patent pending is a civil liability, as is claiming a pending patent applies to something it doesn't, and groups have arisen to run around suing people for this. This is the story of one of those groups.
If corporations are people, aren't stockholders guilty of slavery?
No one is attempting to enforce any patents, no one is attempting to strike down any patents.
Yet. There are three ways it can play out:
PCG is going after several companies, including Timex, Brunswick, and Wright Medical. This type of lawsuit is essentially an extortion scheme, though IANAL.
I said no... but I missed and it came out yes.
What you state is wrong, the USPTO could never "fund" such an entity. They are simply a newer form of a patent troll. Why? Because there is money to be made. See how the free market (read: capitalist) approach works so much better than a solely government run (read: socialist) approach?
You have people who have a job and making money independently, with no loss to the government/commonwealth, compared to if the USPTO ran it the government would be spending millions for a much less efficient solution.
While we are one big state of Palin-worshiping Bible-thumping pro-life conservatives, I find the insenuation that those of us from North Texas just want to hunt and fish insulting. We care about cows, oil, airlines and fighter jets here.
Companies seem to think that aggressively asserting their IP rights in writing is the first step towards keeping people from infringing. (Probably not.) Sometimes they seem to think that they're entitled to state those rights in the strongest terms possible, even when it strains the limits of accuracy. It reminds me of the excessive and demonstrably false copyright notices that are spoken over sports broadcasts—I'll pick on the NFL:
This telecast is copyrighted by the NFL for the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited. [emphasis added]
So, for one thing, they are lying by denying the existence of fair use. It's not that any use of the telecast is prohibited, only those uses not permitted under the fair use clause. But that's not as bad as this bullshit about "any [...] descriptions or accounts of the game." Any at all? Including my own? If I'm watching the game on TV and blogging about it, that's illegal?
I hate to suggest picking just one company to make an example of, but... they should make an example of Activision. These are big companies with full-time lawyers. They can afford to not lie.
Man, your reading comprehension is terrible.
There are no actual patents involved in this case, period. There can be no judgement for or against a patent in this case, because there are no patents involved. No patent will be "clarified" accept to say that yes it does exist (or at least its application exists) or no it doesn't, and yes it does apply or no it doesn't apply. That's it. Nothing is going on with the patent itself, at all.
What is involved is a statement of patents pending which, if there were no such patents pending, is fraud.
So the possibilities are as follows:
- The plantif can prove that there were not applications pending for all of the "patent pending" statements on the box, or that the pending patents did not actually apply to the game. If they do, Activision can be hit for fraud and end up paying $500 for each copy of the game they sold.
- The plantif can fail to prove that there were no applications pending for some patent statements or fail to prove that the patents do not apply. In that case, the little fly goes away.
If Activision attempts to "leave it ambiguous" they will almost certainly lose. The burden is on the plantiff, but it's pretty easy to prove just about anything if the defense doesn't fight back.
Security is mostly a superstition... Avoiding danger is no safer in the long run than outright exposure. - Helen Keller
Man, your reading comprehension is terrible.
Indeed. This entire discussion is a rather blatant example of the failure of moderation. Half the people here seem to think we're actually discussing whether a patent is valid or not.
Actually discussing whether or not the large fine makes sense in this day and age, when it's fairly easy to look up patents, is another thing, as is whether or not it should apply if you do it accidentally, and a real discussion we could actually be interesting.
Likewise, an argument could be made that you should have to lists patents required to use a device on said device even if the device itself doesn't use the patent. (You can replace 'device' with 'software'.)
If you really truly need a patent to do something with what you buy, like if you need to use a patented device to put fuel in your car, I would argue that it would actually make sense to require the car, as well as the fuel device, to state that. This isn't how the law works, and thus that argument won't really help Activision, but it would make sense.
Or, for perhaps a more relevant example, some companies have taken to patenting hardware interfaces. But they can patent just the cable, and hence stop people from making compatible cables, while not patenting the plug itself, and hence not having to notify people on their device.
Hence I might build and sell my own cable and be in violation of patent law, even after I've looked up the patents on the device itself. Yes, in theory, I could be in violation of patents for all sorts of things, but the point is that companies should be required to inform me, a purchaser of their stuff, all the patents that are relevant, even if, strictly speaking, they don't apply to the stuff itself. Perhaps some sort of 'See also' patent list.
But almost all the people here seem to think this is some actual patent dispute, so heaven forbid we have an actual relevant discussion. Ugh.
If corporations are people, aren't stockholders guilty of slavery?
The US court system recently decided that $500 is only a maximum per item sold, and a judge could decide on any lesser amount. Based on precedent, the fine would probably be more like a fraction of a dollar per unit.