Legal Niches

Activision Sued over False Patent Marking

By pete_gallagher

The Texas-based Patent Compliance Group has filed a lawsuit against Activision Publishing over what it terms false marking, or products improperly labeled with patent or patent-pending language used for the purpose of 'deceiving the public.'

Specifically, the suit, filed February 12 in the U.S. District Court for the Northern District of Texas (though we are looking at an amended complaint filed February 22), levels three charges against Activision:

• Marked products with patents having a scope which does not cover the marked products
• Marked products with language indicating that the products are the subject of pending patent applications when no relevant application is pending and/or
• Used in advertising in connection with unpatented products the word 'patent' and/or any word or number importing that the product is patented.

The complaint alleges that 'false patent marking is a serious problem,' and that 'acts of false marking deter innovation and stifle competition in the marketplace.'

The complaint lists a plethora of specific patents and accuses Activision of using them 'out of scope' in products including DJ Hero, Guitar Hero 5, Band Hero, Guitar Hero Van Halen and Guitar Hero Metallica. As an example, one patent the complaint calls out is number 5,739,457, entitled Method and Apparatus for Simulating a Jam Session and Instructing a User How to Play the Drums.  The suit labels Activision's use of the patent as out of scope because, as an example, the original patent covered 'an apparatus that comprises a money validation unit to accept and validate a user's money and a video display system and a control system for receiving an input from the money validation unit,' faculties which consoles do not possess. Patent 5,739,457 can be viewed as a call out at the bottom of Activision's Guitar Hero Mobile site.

Regarding use of the phrase 'patent pending,' plaintiff accuses the defendant of using such terminology on DJ Hero, Guitar Hero 5, Band Hero and Guitar Hero Smash Hits when 'defendant knew that the Patent Pending Marked Products did not have any associated patent applications pending.'

The suit was filed under a qui tam action, which permits members of the public to sue on behalf of the government and seeks damages of 'not more than $500 for each of Defendant's violations, with half going to the Patent Compliance Group and half to the U.S. government. As Gamasutra notes, with the titles listed in this complaint having sold millions of units, per incident damages could wind up totaling an extremely hefty amount of cash.

If anyone's interested in receiving a copy of the complaint, email me (pete@...).

|Via Gamasutra|

Full post as published by GamePolitics.com on February 23, 2010 (boomark / email).