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Curtain Call on Gibson v. Harmonix

It seems that Gibson?s efforts to enforce its musical concert participation patent (U.S. Patent No. 5,990,405) have officially ended. Previously we told you that Gibson?s Tennessee case against Harmonix (and its "Rock Band" game) was on its way back on track after being on hold for a while. While it was on hold, a California court ruled that the same patent did not cover Activision's "Guitar Hero" game, and it seemed likely that the Tennessee court would end up doing the same for "Rock Band."

On Friday, the Tennessee court dismissed the case in view of a settlement that the parties had reached. This dismissal would appear to end the battle over this patent.

Settlement terms are confidential, although we can speculate that the things that happened while the case was on hold did not make Gibson?s life easy. First, proceedings at the Patent Office suggested that the ?musical instrument? required by the Gibson patent had to be capable of making music. This may have caused Gibson to drop its claims against the ?Guitar Hero? and ?Rock Band? guitars (I?ve never been able to make actual music with those things), and the holdout claims may have been leveled against the drums in the ?Rock Band? game (on the theory that the drums could at least still make music).

Second, when the California court ruled that the Activision ?Guitar Hero? game was not covered by the patent, the California court doubted whether the patent covered any interactive video game at all (the patent?s description focuses on letting a user simulate participation in a musical concert, which arguably is not an interactive game type of thing). Even if Gibson was now only focusing on the "Rock Band" drums as being ?musical instruments? to get around the first issue, this finding by the California court would still have been thorny for Gibson to get around.

The vast majority of cases settle before the end of trial and appeals. Mounting evidence and court rulings developed during the case help resolve points of contention, and make the chances of success clearer for both parties to see, and eventually the parties are able to make the business decision to end it at terms they can live with. With the settlement in this case, here?s hoping Gibson, Activision, Harmonix and the others can move on and give us all the next generation in great musical games!

Full post as published by Patent Arcade on June 14, 2010 (boomark / email).