On July 2, 2012, Plaintiff Gametek filed a notice of voluntary dismissal against Defendants Facebook, Inc.;  Facebook Operations, LLC; Facebook Payments, Inc. and Facebook Services, Inc.

On December 7, 2012, the Court dismissed the claims against Defendants Cie Games, CrowdStar, EA, Funzio, Zygna, Digital Chocolate, 6Waves, and RockYou.

This case was terminated on April 8, 2014, following a settlement conference. All claims and counterclaims were dismissed with prejudice between Plaintiff Gametek LLC and Defendant Big Viking Games, Inc.

Gametek filed suit against 21 companies including Facebook, Electronic Arts, and Zynga. Gametek alleged the companies infringed its patent for virtual currency and payment system incorporating items bought and used in-game. Gametek sought damages and injunction through this lawsuit. The patent-in-suit was U.S. Patent 7,076,445.

The original post can be found here.

This case was terminated on October 25, 2013. All claims and counterclaims were dismissed with prejudice subject to a settlement agreement dated October 18, 2013.

Promotional Technologies sued Facebook and Zynga for patent infringement.  Promotional alleged that Facebook and Zynga infringed its patent through their games Farmville, MafiaWars, and other online games offering virtual prizes. The patent-in-suit is U.S. Patent 6,749,511  and it relates to an online game designed to promote websites through a host website that launches the promotional applet. The purpose of the system is to promote websites by encouraging users to revisit them by offering prizes.

The original post of the case is located here.

Earlier this year, Gametek LLC filed several lawsuits in the U.S. District Court for the Southern District of California against 21 companies including Facebook, EA, and Zynga.  Gametek alleges that these entities infringe upon a patent for a virtual currency and payment system incorporating items bought and used in-game.  Games that allegedly infringe upon the ‘445 patent include popular titles such as FarmVille, Mafia Wars 2, and Poppit! Sprint, to name a few.


The name GameTek was used by a video game publisher prior to its closing in1998.  This publisher, based in North Miami Beach, Florida, created several video game adaptions of popular 90s game shows such as Wheel of Fortunate and Jeopardy!.  The Gametek presently involved in this lawsuit, however, claims its place of business in Newport Beach, California, and does not appear to be the same entity. In fact, the current owner of the business license Gametek LLC has not produced a single game as of the writing of this post.  


Activities of this apparent shell company may be unknown, however the last assignee of the ‘445 patent before Gametek was Theados Corporation, a company that claims to have developed “the world’s first Revenue Operating System.”  Theados Corporation assigned the patent to Gametek LLC last year, and along with it, the right to sue for all past and present infringements.  Gametek LLC seeks through this lawsuit to obtain damages, an injunction that would prohibit the defendants from infringing upon the patent, and attorneys’ fees.

Well, it looks like Facebook’s attempt to have its lawsuit with Daniel Miller dismissed has failed again. The diligent reader will remember from our previous post that Miller brought a claim against Facebook alleging that the social website was in violation of copyright infringement by allowing the game ChainRX to be posted on its site. ChainRX is facially similar to Miller’s game Boomshine. Facebook has tried to have the lawsuit thrown out, claiming that Miller had not alleged a sufficient claim. The judge did not agree, saying that the threshold to have the case move forward was low and that Miller satisfied that low threshold.

In the present decision, on Sep. 22, 2010, the judge denied Facebook’s claims that Miller had failed to prosecute the case because Miller did not serve the co-defendant Yao Wei Yeo. In a previous court order, Miller was told that he had until July 30 to serve Yeo with a complaint. Miller took subsequent steps to locate Yeo: he subpoenaed the website that hosts Yeo’s website, but was only able to obtain a UPS Store address for Yeo. Miller subsequently sent a complaint to the UPS address. Even though Yeo has yet to appear in the actual lawsuit, the federal judge has ruled that Miller has met the due process requirement for service of process.

The federal judge, in his ruling, states that “[i]ndeed, it appears that defendant Yeo did in fact receive notice of this action.” After receiving the complaint in his mailbox, Yeo even contacted Facebook’s in-house counsel and discussed the case with him.

It appears that the lawsuit will continue to go forward against Facebook. We will, as always, stay on top of the action and keep you as updated as we can.

*Thanks to Josh Mosley for his continued help with this post and with the blog

Facebook’s attempts to end a lawsuit with Daniel Miller before trial has again apparently failed. On July 23, 2010, the United States District Court for the Northern District of California denied Facebook’s second motion to dismiss and vacating hearing proceedings. Nearly two months ago Facebook alleged that Miller’s complaint did not meet “the minimum pleading requirements set forth in Iqbal” for allegations of direct and indirect copyright infringement.

In 2007, Plaintiff Daniel Miller authored Boomshine, a video game where players click on a floating circle which then expands and causes other contacted floating circles to expand. The game has twelve levels. Each level sets a minimum number of circles that must be contacted in order to advance the game. Every time a circle is contacted it expands for a limited period until it disappears. Thus, players must time their contacts just right before all the circles disappear. Mr. Miller owns a registered copyright for the Boomshine video game source code (i.e., as a literary work).

Sometime in 2009 defendant Yao Wei Yeo authored his own, allegedly similar, game ChainRxn. ChainRxn, like Boomshine, is played over the internet and also involves expanding circles that cause other circles to expand. The Defendant’s game is a Facebook software application written using the Facebook Developer Platform. The game appeared in Facebook’s “Application Directory” which allowed members of Facebook to download and enjoy the game.

According to the Plaintiff, ChainRxn shares the same “look and feel” of Boomshine and incorporates almost every visual element of the game. Miller filed a suit alleging direct copyright infringement based upon these allegations, but has since amended the complaint to allege only contributory infringement. Facebook countered that Miller could not state a plausible claim under Iqbal for direct copyright infringement because Boomshine is not registered with the Copyright Office as an “audiovisual” work, but as a literary work. Thus, Facebook alleges that only the source code for Boomshine is registered, not the game itself. According to Facebook, the non-literal audiovisual elements of Boomshine are not protected by Miller’s copyright, and any unlawful copying of the source code cannot be plausibly inferred from the allegedly identical look and feel of the two software programs.

In a recent decision, William Alsup, United States district judge for the Northern District of California, rejected Facebook’s allegations that the lawsuit could not proceed for two reasons:

First, because it would be “unreasonable, if not impossible” for the plaintiff to know in detail, “how defendant Yeo copied his computer code” at the pleading stage. Judge Alsup went one to state that all Miller could know at this stage of the proceedings is that sometime after he published his copyrighted work a copycat version appeared on Facebook bearing all readily observable similarities. The Judge continued by arguing that the plaintiff could make a reasonable inference that the underlying source code (which he holds a copyright to) was copied. The discovery stage will reveal whether or not this inference is false, and Judge Alsup intends to move the lawsuit toward that stage.

Second, the prior order did not hold that copyright protection for source code was limited to the literal elements of the work. Rather, it stated that “plaintiff’s copyright appears to be limited to the source code rather than the audiovisual aspects of Boomshine” to set the proper starting point for the analysis. Judge Alsup stresses that the prior order did not make any determination either way as to whether the various audiovisual aspects of the Boomshine software program were unprotected.

Its worth noting that, according to the United States Copyright Office, a copyright registration in the computer program also protects the resulting output generated by the program:

[A] single registration is sufficient to protect the copyright in a computer program and related screen displays, including videogames, without a separate registration for the screen displays or a specific reference to them on the application for the computer program. An application may give a general description in the “Author Created” space, such as “computer program.” This description will cover any copyrightable authorship contained in the computer program and screen displays, regardless of whether identifying material for the screens is deposited. (From Circular 61, emphasis added)

So, we will continue to monitor this case as it is likely heading to the latter stages of litigation. If you are interested, you can read the full order here. Also, for anyone looking to waste a little time, be sure and check out Mr. Miller’s game Boomshine [Author’s warning: The game is very addictive!].

Lastly, a big thanks to Josh Mosley, from the University of Miami Law School, for all his help, research, and assistance with the blog this summer (including this post). The posts by "Patent Arcade Staff" this summer were principally researched and written by him, and he also did 99% of the legwork for a new forthcoming section of the blog on issued video game patents. Thanks Josh, and best of luck in your last two years of law school!

So word has hit the Internet that Facebook's U.S. Patent No. 7,669,123, entitled “Dynamically Providing a News Feed About a User of a Social Network,” issued last week, and it’s certainly created quite the buzz in chat rooms and web sites all over. Some folks seem outraged at the patent system, some are outraged at businesses who seek patents, and others seem outraged that those folks are outraged at the patent system.

This happens several times a year, whenever a high profile patent is issued, and I figured it might be helpful to provide some sort of Patent Outrage Guide, to help people understand their rage (or lack thereof). So if you’re outraged and want to know why, or if you simply want to be outraged and want to know how, please read on …

I. What’s it “Cover”?

First of all, you can’t be outraged about a patent if you don’t know what the patent actually “covers.” A patent’s scope is determined by the claims that appear at the end of the document. Think of each claim as a standalone list of things or steps that a product would have to have or do in order to infringe that claim. If your product has every limitation in one claim, then congratulations, you infringe that claim and that patent. If your product is missing at least one of the limitations of a claim, then congratulations, you don’t infringe that claim.

That sounds simple, but we’re lawyers, so it can’t be simple. The claims are not read in a vacuum. Instead, they are read and interpreted in the context of the rest of the description in the patent. So if a patent describes a “nut” as being the kind you screw on a bolt, the patentee probably can’t say that a peanut infringes that limitation.

To further complicate things, the claims are also interpreted in view of the prosecution history. The prosecution history of a patent is the back-and-forth written record between the applicant (inventor) and the patent office that ultimately resulted in the patent getting granted. As many of you know, the patent office is charged with examining patent applications, and only granting the ones that claim new and non-obvious inventions. If the applicant had to make arguments about the scope of his/her claims to get it to issue (e.g., “my claimed ‘nut’ refers only to a peanut, and not a walnut”), then the claim will be interpreted with those arguments in mind – as a member of the public, you have the right to rely on those arguments in determining the proper scope of the patent’s claims.

II. That’s Too Broad!

Ok, so now you’ve got a handle on the patent’s scope, and you think it’s too broad (e.g., you think it describes something that’s been around forever). Should you be outraged? Maybe, but let’s put things in perspective. First of all, you might be reading the claims incorrectly. A claim is interpreted as a hypothetical “person of ordinary skill in the art” would, in view of the specification and file history mentioned above, so it’s quite possible that there are one or two key words lurking in the claims that are interpreted more narrowly than you think, rendering the patent narrower than you think.

However, it’s certainly possible that the PTO has issued a claim that is too broad. But before you get outraged at this, some perspective may be helpful. The PTO handles a MASSIVE number of patent applications. Over 17,000 were issued last month, and another 26,000 were published (new applications are typically published 18 months after filing). Each application probably has, on average, about 20 different claims (since that’s what you get “for free” when you file the application), and each claim can have a dozen or more limitations. To reject these claims for not being novel, the PTO has to search for evidence that every feature in these claims can be found in the prior art, and in the arrangement claimed. It’s certainly possible that, in the relatively limited amount of time an examiner can spend searching a particular case, the examiner might be unable to find evidence for one of those words. If that happens, the applicant deserves the patent.

Don’t know if that’s outrage-worthy, though. We aren’t outraged at the postal service for occasionally losing a letter – we understand it’s a necessary cost of having the service at all. Doesn’t the PTO deserve the same understanding?

III. The Companies are Evil!

Some critics argue that the companies seeking broad patents are somehow unethical for doing so. I’m no expert on defining what is or is not ethical for a business, but it seems to me that a business’s main goal is to stay in business. Part of that involves not doing things (e.g., kicking puppies, pulling wings off of flies, etc.) that would cause it to lose customers and go out of business, but the main goal has to be to stay in business. Indeed, a public company’s directors can be SUED by their shareholders if they don’t do a good job keeping the company afloat.

Patenting its own innovations helps companies stay in business in several ways. First of all, they can assert them to keep competitors out of the same market space. Second of all, simply having a collection of patents is useful when doing business with those competitors. Nobody wants to have to sue, so if two competitors each have formidable patent portfolios, they will be more likely to find a business solution to their differences.

So I’m afraid that on the whole “evil” front, I can’t fault the companies for seeking to protect their inventions. Of course, I’m a patent attorney, so I may be biased there.

IV. Patenting Software, Are you MAD?

Some of the posters clearly feel that software should not be eligible for patent protection. I can understand where they’re coming from. Good software programming practice involves writing code and modules that can be re-used, saving time the next time around. Sharing and building on each others’ work is just an integral part of good programming practice.

The tough part for those posters, though, comes from the fact that not everyone feels the same way. The developer who spent 6 months coming up with a novel and useful software routine doesn’t always want to just share that with everyone, especially if they don’t get anything comparable in return. Sure, it could be a nice thing to do, but is it worth going out of business, or getting sued by shareholders?

If you must get outraged at the patentability of software, then the target of your outrage shouldn’t be the PTO, or the companies, it should be Congress. They’re the ones responsible for writing the laws, and they alone have the power to rewrite them.

V. Conclusion – Be Happy

So as you’ve figured out by now, this biased patent attorney happens to think that most of the patent outrage is misplaced and/or undeserved. We all live and work under the laws and rules that are in place, and everyone’s just trying to get by. Thanks for reading!