It used to be that headlines like this referred to people pirating music, software, or video games. Kind of funny that this headline once again refers to REAL pirates. Not the kind with swords, but the kind with boats, and guns, and that hijack other boats on the open seas:

Pirates Take Up to $12 Billion Worth of Booty.

Just an observation...

Walker Digital, LLC, a self-professed “invention” company who claims to hold over 500 patents, has filed suit against Activision, Inc., Activision Blizzard, Inc. and Zynga, Inc. In the complaint, Walker Digital alleges that the defendants’ games infringe upon U.S. Patent No. 6,425,828, entitled “Database Driven Online Distributed Tournament System.” The patent claims priority to 1998, and its first claim reads as follows:

1. A method of conducting a distributed electronic tournament for a plurality of players, comprising:

exchanging information between a central controller and a player located remotely from the central controller, the information (i) being exchanged while the player plays a game in the tournament and (ii) influencing game play; and

storing in a database player information associated with the player, the stored player information being available for use in a subsequent tournament to influence game play of the subsequent tournament while the player is playing a subsequent game in the subsequent tournament.

The complaint alleges infringement by a litany of games, including (among others) Activision Blizzard’s Call of Duty: Black Ops, Call of Duty: Modern Warfare (1 and 2), Call of Duty: World at War, Blur, DJ Hero 2, Cabela’s North American Adventures, and World of Warcraft (and its expansions packs), and Zynga’s Mafia Wars, Vampire Wars, Fashion Wars and Street Racing.

We’ll keep you posted on this one. The case caption is Walker Digital, LLC v. Activision et al., No. 1:11-cv-00004 (D. Del. filed Jan. 3, 2011).

A panel of the 9th Circuit on Tuesday upheld a lower court’s 2009 injunction barring the distribution of the Glider computer program that automatically plays the lower levels of World of Warcraft. Read more about it here.

If you're looking for some good visualization data of the USPTO backlog, pendency times, and other interesting statistics, check out the USPTO Patent Dashboard, it provides some very useful and interesting metrics.

As we last reported here, Motiva LLC has previously accused Nintendo Co., Ltd of infringing U.S. Patent No. 7,292,151 (‘151 Patent). The ‘151 Patent, entitled “Human Movement Measurement System,” is generally directed to a system for measuring human body movements for exercise and physical rehabilitation, and Motiva alleged that Nintendo’s Wii Fit product was an infringement.

Its previous efforts at enforcement stalled when the patent underwent reexamination at the PTO, but Motiva has just added a new chapter to the story. Last week, Motiva filed a complaint with the International Trade Commission (ITC), accusing Nintendo of infringing both the ‘151 Patent and a continuation application (U.S. Patent No. 7,492,268). The essential claims remain the same. Motiva claims that its patents cover the human movement tracking employed by the Wii Fit.

The alternative venue is not an uncommon one for asserting patents, and does not rule out or obviate parallel district court proceedings (although one can be stayed for the other).

In an ITC action such as this, a complainant alleges that some other person (a respondent) is importing goods that is otherwise harming an existing U.S. (domestic) industry. If the ITC concludes that such harm is being done, the ITC can issue an Exclusion Order, instructing U.S. Customs to block the future importation of goods that do the harm. To a company whose manufacturing facilities are located outside the U.S. (true for many consumer products companies these days), such an Exclusion Order can be every bit as painful as a district court injunction.

An ITC action is similar to a district court action in many ways. There is a complaint, there will be discovery (the Federal Rules of Civil Procedure are adopted at the ITC for many aspects of case management), there are motions, and there will be a hearing that is conducted much like a trial.

There are differences as well. Most notably, an ITC action is much faster than a typical district court action. In the ITC, a typical proceeding is scheduled for completion in just over a year (can be a bit longer for "complex" cases). The compressed schedule puts pressure on everyone, but the pressure usually affects the accused infringer more, since they do not control the timing of when the complaint is filed.

Another difference is the presence of a third party in the case. Unlike a district court action, an ITC investigation will also have an Investigative Staff Attorney, who is there to represent the interests of the citizens of the U.S. The Investigative Staff can participate in the case much like a party, reviewing discovery, asking questions, and filing responses to motions and objections.

Another difference is at the outcome of the case. The ITC cannot award monetary damages, and cannot redress past infringement. Instead, the remedy is the Exclusion Order, which will only affect attempted importations after the Order takes effect. Additionally, when an Exclusion Order is issued, the President of the United States has a period of time in which to review the case and reject it. Such a rejection is not common, but it can be made, for example, if the President deems that excluding the importation would unduly harm international relations.

We'll keep you posted as to further developments, and in the meantime, please drop us a line if you have any questions about the case or the ITC.

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

In the beginning of June, Patent Arcade reported that Harmonix Music Systems, Inc. and Viacom Inc. were close to settlement in the Harmonix v. Konami case (one of two Harmonix/Konami cases). At that time, it was unclear whether the progress toward settlement in the Harmonix v. Konami case would affect sister case Konami v. Harmonix. It appears now that the two sides have reached an agreement in Konami v. Harmonix and filed a Motion to Dismiss in the Eastern District of Texas on September 15, 2010. The following day Harmonix filed a motion to dismiss a similar and concurrent case in Massachusetts.

The Motion to Dismiss indicates that:

Pursuant to the terms of a separate agreement, Plaintiffs Konami Digital Entertainment Co., Ltd. and Konami Digital Entertainment, Inc. (“Plaintiffs”) and Defendants Harmonix Music Systems Inc., MTV Networks Co., Viacom International Inc. and Viacom Inc. (“Defendants”), have agreed to settle, release, adjust and compromise all claims and counterclaims in the above-captioned action. The parties, therefore, move this Court under Rule 41(a) of the Federal Rules of Civil Procedure to dismiss the above-entitled cause and all claims by Plaintiffs against Defendants and all claims by Defendants against Plaintiffs made therein with prejudice.

Terms of the settlement have not been disclosed.

Lucasfilm Ltd (Lucasfilm) has sensed a disturbance. They filed suit last week against “Jedi Mind, Inc.” (Jedi Mind) accusing the Nevada company of infringing Lucasfilm’s rights in the “Jedi” trademark (among other things). According to the complaint, Jedi Mind markets and sells a line of games and software that are controlled by users’ thoughts. The named products are “Master Mind”, “Jedi Mouse” and “Think Tac Toe,” and Lucasfilm wants Jedi Mind’s use of the “Jedi” name to stop.

In addition to the trademark infringement claims, the complaint includes allegations of false designation of origin, trademark dilution by blurring, breach of contract and violation of California’s unfair competition law. Basically, Jedi Mind is going to have a headache.

Time will tell how this one turns out, and we’ll keep you posted. The case caption is Lucasfilm LTD et al. v. Jedi Mind, Inc. and Brent Fouch, No. 10-3632 (N.D.Cal, filed 8/17/2010).

Update: Just a few days after this original post, the court entered a stipulation, permanent injunction and judgment pursuant to a settlement reached by the parties. Looks like the product is now called "Mind Mouse."

I am not sure how this case missed our radar, but here goes...

As reported at Wired.com:

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A federal judge is allowing a negligence lawsuit to proceed against the publisher of the online virtual-world game Lineage II, amid allegations that a Hawaii man became so addicted he is “unable to function independently in usual daily activities such as getting up, getting dressed, bathing or communicating with family and friends.”

Craig Smallwood, the plaintiff, claims NCsoft of South Korea should pay unspecified monetary damages because of the addictive nature of the game. Smallwood claims to have played Lineage II for 20,000 hours between 2004 and 2009. Among other things, he alleges he would not have begun playing if he was aware “that he would become addicted to the game.”

Smallwood, who did not immediately respond for comment, alleged that the company “acted negligently in failing to warn or instruct or adequately warn or instruct plaintiff and other players of Lineage II of its dangerous and defective characteristics, and of the safe and proper method of using the game.”

Released in 2003 as a sequel to the original Lineage game, which was a national phenomenon in South Korea, Lineage II is an immersion 3-D MMORPG that gained a reported 600,000 users within a few years, and is still being regularly expanded and updated six years later — all the better to turn more vulnerable Americans into bleary-eyed shut-ins.

U.S. District Judge Alan Kay refused to dismiss parts of Smallwood’s complaint this month, possibly clearing the way for a trial. ”In light of plaintiff’s allegations, the court finds that plaintiff has stated a claim for both negligence and gross negligence,” Kay ruled (.pdf).

An attorney for the company was not immediately prepared to comment on Kay’s August 4 decision. But in a Tuesday court filing, NCsoft again urged the judge to dismiss the case.

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We'll continue to monitor the case and keep you posted.

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