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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

Full post as published by Patent Arcade on September 18, 2008 (boomark / email).