On January 30, 2018, Barbaro Technologies, LLC (“Barbaro”) sued Niantic, Inc. (“Niantic”) for the alleged infringement of U.S. Patent Nos. 7,373,377 and 8,228,325. Barbaro’s asserted patents are generally directed to integrating real-world information (e.g., a real-world geographic location) with an augmented reality environment. Barbaro specifically asserts that both Niantic’s Pokémon GO and Ingress infringe the asserted patents.


Claim 1 of the ’377 Patent reads:

1. A method of integrating real-time information into a virtual thematic environment using a computer system including a client and a server, comprising:
   providing a graphics user interface (GUI) module for use in the client system;
   providing a quantum imaging environment (QIE) module in one of the client or the server system;
   providing a digital logic library in one of the client or the server system;
   providing a primary application in the client system;
   providing a first user interface that is associated with the primary application;
   sending a request for first real-time information via the QIE module to the world wide web;
   obtaining the first real-time information via the world wide web;
   downloading the first real-time information from the world wide web into the primary application;
providing access to the first real-time information within the virtual thematic environment via the first user interface;
   providing at least one secondary application within the primary application at the client system;
   sending a request for second real-time information via the QIE module;
   obtaining the second real-time information via the world wide web;
   downloading the second real-time information into the secondary application;
   enabling a user to access the at least one secondary application through the first user interface; and
   enabling the user to control the at least one secondary application through a second user interface.

Niantic, which was spun off from Google, Inc. (“Google”), may have been aware of the Barbaro patents as early as 2006. Per Barbaro, around October 26, 2006, Barbaro sent Google’s Deputy General Counsel a copy of patent publications that led to the issuance of Barbaro’s asserted patents. Google, Inc. allegedly acknowledged the letter but “refused to discuss the matter before the patent issued.” No further detail regarding exchanges between Barbaro and Google are provided in the complaint.

This is case 2:18-CV-00773 in the District Court for Central District of California.  We will track it and keep you apprised of significant updates.

On January 12, 2018, photographer Christopher Sadowski sued IGN Entertainment, Inc. (“IGN”) for copyright infringement.  The copyright in question: a photograph of the Pokémon GO homepage on Sadowski’s cell phone, similar to (but not the same as!) the stock photo shown below.


Sadowski licensed his photograph to the New York Post for a July 12, 2016, article regarding a man who got caught cheating on his girlfriend through Pokémon GO.  It appears that IGN may have infringed Sadowski’s copyright by using the image when discussing the New York Post article in an IGN Hungary article titled “6 Crazy Pokémon GO Stories.”  The image is absent from IGN’s U.S. version of the article.

However, Sadowski’s case may have an Achilles' heel.  Because Niantic and Nintendo have intellectual property rights in their game (including the login screen), Sadowski’s photograph is arguably a derivative work, and his copyright would thereby extend only to the “material contributed by the author of such work, as distinguished from the preexisting material employed in the work.”  That’s not likely to be much.  Moreover, whatever minimal copyright Sadowski has in his photo “does not imply any exclusive right in the preexisting material.”  Lastly, protection for a derivative work using someone else’s material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully (e.g., without the appropriate license).  In other words, there’s a fair argument that Sadowski’s photograph rights are only as good as Nintendo and/or Niantic will allow them to be.

Sadowski’s case against IGN is a cautionary tale for Internet content creators. While many questions about the applicability of fair use on the Internet exist, it remains a bad idea to use images from other websites–even news websites–without appropriate permission.  Indeed, a royalty free version of the exact same photo exists and could have saved IGN a lot of grief.

Pikachu may be cute, but he’s got teeth. The Pokémon Company Int’l. Inc. (“Pokémon”) filed suit last Friday against Beckett Media LLC (“Beckett”), accusing Beckett of copyright infringement. Specifically, Pokémon alleges that Beckett’s monthly publication of the “Beckett Pokémon Unofficial Collector!” magazine unlawfully reproduces copyrighted images of Pokémon’s cards without Pokémon’s (or Pikachu’s) consent. According to the complaint, Beckett’s guide lists price values for the various Pokémon cards (the cards are valued as collector’s items, based on rarity and awesomeness), and reproduces full images of selected ones of the cards each month.

The complaint further alleges that when Pokémon previously asked Beckett to stop reproducing the images, Beckett responded by alleging that Pokémon had granted an implied license and/or consented, based on the fact that Pokémon had actually purchased advertising space in the monthly publication after seeing the publication’s format (and by extension, the occasional image reproduction), and that they did not complain about it before. The complaint also notes that Beckett’s more recent responses appeared to back down, with offers to stop the reproductions.

Time will tell how this one turns out, and we’ll keep you posted. The case caption is The Pokémon Company Int’l, Inc. v. Beckett Media LLC, No. 3-10cv1392 (N.D.Tx, filed 7/16/2010).

On a related note, who knew that Pokémon is coming up on 15 years of collecting card and monster frenzy? I wonder how the old standbys like Pikachu, Charizard, JigglyPuff and Shoe actually age over 15 years. Ok, one of those four is from South Park, not Pokémon. Thanks for reading!