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."

Comments

Someone zoned out...

[ZeroExistenZ]

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!!"

Re:Someone zoned out...

[eldavojohn]

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 have no expertise even remotely in this area but, as the submitter, I looked up all the patents mentioned in the claim. A lot of them seem to do with specifics about the controllers like the drum set, guitar or even the mixing board for DJ Hero. But basically each seems to cover many aspects of how these input systems allow the user to 'learn' and how the played track is replayed over the recorded audio. Take 5739457 for instance, it seems to focus entirely on the electronic drum sets of Guitar Hero. I think what happened here was that the patent markings were put on every single dust jacket for several Guitar Hero products -- regardless of whether or not they came with the hardware to play the game. 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. That was about as far as I could see them going with these claims. That the person buying that may be confused that the product they bought is covering patents that promise something grander than what they bought.

A really interesting implication for anyone that makes hardware. What if all XBox packs had the same generic patent markings and the arcade came with patent markings for the headset and wireless attachment (not included in arcade)?

Should this sort of thing be prosecutable? Should Acitivision really get any sort of judgment against them for this level of carelessness?

Re:If they're trolls, so are the EFF

[digitig]

Slashdot doesn't tell you anything. Slashdot is a collection of individuals. Some of them tell you one thing, others tell you something different.

Re:If they're trolls, so are the EFF

[arth1]

So what's the big difference between a "false patent marking troll" and EFF?

EFF doesn't file in Eastern Texas. In my opinion, anyone who files for a case related to patents and copyrights in Easter Texas does it to take advantage of the sham court system they have established there.

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. That difference in intent is striking, isn't it?

Re:Go for it!

[DavidTC]

Um, no, patent pending is the opposite of stifling creativity.

Patents stifle creativity. Patent pending lets you know what patents to look up.

Society needs to be warned about pending patents, so that people won't waste their time developing something identical, and then learn it is patented. That is much most stifling of creativity than 'Here is a list of things you should look up before developing a product like this'.

You can argue that patents are bad, but you cannot possibly argue that 'knowing patents exist before spending time and money developing a product' is bad.

I'm actually amazed it's any sort of crime, and it certainly shouldn't be per instances. It's the equivalent of printing 'may contain peanuts' on food that does not, in fact, contain peanuts.

I mean, an argument can be made that an overkill 'patent pending' use can result in the person being unable to find the actual relevant patent by throwing too much chaff in there, but these patents are relevant...if you're using the software you purchased, you're using the patents. You're just using them on the hardware you bought separately. The government should just order them to correct the error.