Well folks, looks like Worlds.com v. NCSoft has settled. The court on April 23, 2010, ordered dismissal with prejudice based on a binding settlement agreement between Worlds.com and NCSoft. Terms of the settlement appear to be confidential. Now we wait and see whether Worlds.com pursues any other MMOG operators...

On Monday, April 12, 2010, Blizzard filed a lawsuit in federal court in California against Justin Marshall and five unnamed defendants for copyright infringement, circumvention of copyright protection systems in violation of the Digital Millennium Copyright Act (“DMCA”), breach of contract, and tortious interference with contract.

In its complaint, Blizzard alleges that Marshall is the leader of a sophisticated group of hackers (known as “StarCrack”) who are working together to develop “rogue” servers that can emulate Blizzard’s own Battle.net, thereby enabling people with pirated copies of the StarCraft 2 game client (which is still in a closed beta test) to enter the game’s online multiplayer environment.

According to the complaint, the real Battle.net servers validate the authenticity of a user’s StarCraft 2 game client and the user’s Battle.net account at login. If authentication fails, the Battle.net server prevents the StarCraft 2 game client from “unlocking” the copyrighted game content associated with the game’s online multiplayer environment. When a pirated StarCraft 2 game client connects to the StarCrack server, however, the StarCrack server allegedly bypasses the authentication process and unlocks the online multiplayer mode in the pirated StarCraft 2 game client. According to Blizzard, the defendants’ actions constitute copyright infringement, circumvention in violation of the DMCA, breach of contract (i.e., breach of the license agreements for StarCraft 2 and Battle.net), and tortious interference with contract (i.e., causing others to breach these license agreements).

We will continue to follow this case, which is Blizzard Entertainment, Inc. v. Marshall (Case No. 10-cv-00450-DOC-RNB), filed April 12, 2010, in the U.S. District Court for the Central District of California.

On Tuesday, April 13, 2010, the U.S. Court of Appeals for the Federal Circuit ruled in favor of Nintendo in Anascape, Ltd. v. Nintendo of America Inc. (Docket No. 2008-1500), a patent infringement case appealed to the Federal Circuit from the U.S. District Court for the Eastern District of Texas (Case No. 9:06-CV-158).

In 2008, the District Court ruled that certain Nintendo video game controllers infringed U.S. Patent No. 6,906,700 (“the ‘700 patent”), which was owned by Anascape. Nintendo subsequently appealed the District Court’s ruling to the Federal Circuit, resulting in this decision.

Writing for a three-judge panel of the Federal Circuit, Judge Newman explained that the controlling issue on appeal was whether the ‘700 patent could claim priority to an earlier Anascape patent, namely, U.S. Patent No. 6,222,525 (“the ‘525 patent”).

In particular, the ‘525 patent had a filing date of July 5, 1996, while the ‘700 patent had a filing date of November 16, 2000. Both patents deal with video game controllers that receive user input in six degrees of freedom (“DOF”), but the ‘525 patent describes a controller with a “single input member” (e.g., a single trackball), while the ‘700 patent concerns itself with a control with multiple input members (e.g., two trackballs).

The question of priority was at the core of the Federal Circuit’s decision in this case, however, because after the filing date of Anascape’s ‘525 patent but before the filing date of Anascape’s ‘700 patent, Sony released its DualShock (and DualShock 2) controller in the U.S. And as Anascape conceded, if the ‘700 patent could not claim priority to the ‘525 patent, then Sony’s DualShock controllers would be prior art to the ‘700 patent and render the ‘700 patent invalid.

Relying on established Federal Circuit precedent and a recent ruling concerning the “written description” requirement that U.S. patents must meet, Judge Newman explained that “[t]o obtain the benefit of the filing date of a parent application, the claims of the later-filed application must be supported by the written description in the parent ‘in sufficient detail that one skilled in the art can clearly conclude that the inventor invented the claimed invention as of the filing date sought.” Slip Op. at 3.

In deciding whether this requirement was met here, the court reviewed the claims, specification, and drawings of the ‘525 patent. In conducting this review, the court observed not only that the claims, specification, and drawings of the ‘525 patent focused solely on “single input member” controllers, but also that the specification of the ‘525 patent asserted that multiple input member controllers had “significant disadvantages.”

After discussing the differences between the ‘700 patent and the ‘525 patent in greater detail, the court ultimately decided that the Anascape’s ‘700 patent could not claim priority to its ‘525 patent. Based on this conclusion, the court ruled that Anascape’s ‘700 patent was invalid (as a result of Sony’s DualShock controllers counting as prior art) and accordingly reversed the lower court’s ruling that Nintendo infringed.

We will keep you posted of any further updates in this case.

Kotaku's full census results are in, and there are some interesting points...

Re Consoles:

- 65% of you own multiple consoles, while a quarter of participating Kotaku readers are in possession of all three current generation machines.

- Only 5% of participating readers own a PSPgo console. Sorry, Sony.

- 66% of participating readers have reported that at least one Xbox 360 console has failed on them, while 32% report multiple failures.

Re Pirates:

- 51% of participating readers have pirated a console game

- 40% of participating readers have pirated a handheld game

- 79% of participating readers have pirated a PC game. 79%!

Re the PC:

- 42% of you don't play any kind of MMO whatsoever.

- 78% of participating readers have bought games digitally.

- Steam dominates the digital download market amongst participating Kotaku readers

- Only 19% of you can play Crysis as nature intended.

- Only 6% of participating readers are PC snobs, 94% of you playing games on at least one other system.

- A lot more of you would take Valve over Blizzard.

Re Favorite Games:

- You prefer Mass Effect to Halo.

- Asking for "favourite franchise" on PC was a stupid idea.

- You prefer Zelda to Mario

- Smash Bros. is more popular a fighting game than Street Fighter amongst participating Kotaku readers.

- Modern Warfare 2 may have the sales records, but its predecessor is your favourite Call of Duty game.

Re the People:

- You play an astonishing variety of games.

- Nearly 60% of participating readers don't play any kind of sports game. That's surprising.

- 46% of you spend most of your time alone, with singleplayer games.

- Nearly half of participating readers have packed their music game instruments away, no longer playing games like Rock Band or Guitar Hero.

Full results can be found here.

If you're planning to attend the 2010 Triangle Games Conference in Raleigh, NC, please stop by and say 'hello'!

Steve, Ross, and Shawn are presenting a panel on recent developments in video game lawsuits, and lessons game developers can learn from them. Our panel's at 9:30am on Thursday.

And while you're here, check out the many other presentations and events on the business and development of video games. The speaker agenda is here:

http://www.trianglegameconference.com/content/schedule_program

See you there!

For attorneys, this is the one annual conference that IP lawyers cannot afford to miss. Now in its 25th anniversary year, the Annual Intellectual Property Law Conference of the ABA Section of Intellectual Property Law provides a gathering of the foremost authorities on the state of intellectual property law, including judges, government officials, in-house counsel, academics, and private practitioners. The conference is April 7-10, 2010, at the Crystal Gateway Marriott in Crystal City (Arlington), Virginia.

Pick up an entire year’s worth of CLE credits during the 2 ½ days of quality IP programming on the issues critical to your practice. Some program highlights include:

• The future of patent reform
• ITC IP mediation project
• Google books settlement
• Defending depositions in trademark cases
• Duty of disclosure to USPTO
• Patent damages
• Opinion of counsel
• Legal aspects of social media marketing
• Biosimilars
• Venue transfer & forum selection
• Interfacing with clients

The conference will also feature ample opportunities to network with your IP colleagues, whether at our Young Lawyers Welcome Reception, Corporate Counsel Reception, Women’s Networking Dinner, or the popular reception at the Dolley Madison House at the U.S. Court of Appeals for the Federal Circuit. In addition, a very special 25th Anniversary Gala Dinner with entertainment and dancing is planned to fete a quarter century of this preeminent conference.

Registration details will be available on the website soon.

Back in 2007, Fenner Investment Ltd. sued Microsoft, Nintendo and Sony for infringement of U.S. Patent No. 6,297,751, relating to low voltage joystick port interfaces. Claim 1 is reproduced below:

1. An interface between a joystick device having a first source voltage and
a processor, comprising:
a Resistor-Capacitor (RC) network, connected to the joystick device, said
RC network having a capacitor that generates an analog joystick position
measurement signal; and
an interface circuit having a second source voltage that is lower than the
first source voltage, including
a buffer circuit, in a first operation mode of said interface, receiving
said analog joystick position measurement signal, outputting a first logic state
as a digital signal before said analog joystick measurement signal exceeds said
predetermined threshold, and outputting a second logic state as said digital
signal after said analog joystick measurement signal exceeds said predetermined
threshold; and
a pulse generator generating a pulse based on said digital signal in said
first operation mode of said interface, a width of said pulse representing a
coordinate position of said joystick device, the capacitance value of said
capacitor being a function of said predetermined threshold that prevents
deviation of the width of said pulse from expected values.

In 2009, the U.S. District Court in the Eastern District of Texas held in favor of the defendants, finding that summary judgment was appropriate with respect to both the issue of direct infringement and and the issue of the doctrine of equivalents. A summary of the issues and the District Court's decision can be found here.

Subsequently and as noted here, Fenner Investments filed a notice of appeal in the U.S. District Court for the Eastern District of Texas on July 15, 2009. Specifically, Fenner appealed the final order granting summary judgment of noninfringement to Microsoft and Nintendo made in March 2009 and an August 2008 opinion interpreting the patent claim language at issue in the case.

Unfortunately for Fenner Investments (and fortunately for the defendants), the Federal Circuit issued its opinion on March 15, 2010, upholding the District Court's decision. In addition to affirming the District Court's findings, the opinion also indicates that the Federal Circuit does not address Fenner Investments' arguments with respect to the construction of the term "processor." The opinion does not provide an explanation as to why Fenner Investments' arguments were not addressed by the court. The opinion can be found here.

On Friday, March 5, 2010, the U.S. District Court for the Northern District of California granted Sony’s motion for summary judgment in Bissoon-Dath v. Sony Computer Entertainment of America, Inc., Case No. 08-cv-012350MHP.

Bissoon-Dath and a fellow plaintiff are screenwriters who previously accused Sony of copying elements of several of the plaintiff’s stories in developing Sony’s God of War video game.

In considering this motion for summary judgment, the court evaluated the plaintiffs’ claims for copyright infringement to determine whether “no reasonable juror could find substantial similarity of ideas and expression” between the plaintiffs’ stories and God of War. In particular, the court explained that the legal standard for copyright infringement required a plaintiff to show ownership of the copyright and copying of protected elements.

This case turned on the issue of copying, and the court evaluated whether the plaintiffs’ stories and God of War were “substantially similar,” which the plaintiffs had to establish to prove copying. In doing this, the court compared the plot, themes, dialogue, mood, settings, pace, characters, and sequence of events of the works.

In addition, the court noted that general plot ideas and other scenes that flow naturally from “unprotectable basic plot premises” are not protected by copyright law and thus not considered when the works are compared. As the court put it:

“In such a case, it is particularly important for the court to use its own ‘Blade of Chaos’ to slice or filter out the unprotectable elements. Greek gods, dialogues among them about mortal affairs, rivalries among the gods, and mythical beasts such as the Hydra or the Nemean Lion are unprotectable elements; it is uncontroversial that they have been used widely in both ancient and modern artistic works, in the naming of astronomical bodies and spacecraft, and in other fields.” Slip Op. at 19-20.

Ultimately, after comparing all of the elements listed above (i.e., the plot, themes, dialogue, mood, settings, pace, characters, and sequence of events of the works), the court concluded that no reasonable juror could find substantial similarity between the plaintiff’s stories and God of War, and the court therefore ruled in favor of Sony.