On January 17, 2018, U.S. District Judge John Michael Vazquez of the District of New Jersey dismissed all patent infringement claims asserted by Joseph Scibetta (a/k/a “Bankers & Brokers”) (“Scibetta”), against Slingo, Inc. and RealNetworks, Inc. (collectively, “Slingo”).  The reason: none of Scibetta’s patents survived scrutiny 35 U.S.C. § 101.

Scibetta is the owner of various intellectual property rights relating to a card and casino game called “BANKERS & BROKERS.”   U.S. Patent No. 6,220,597, one of the patents asserted in the case, describes the game in detail:

1. A method for playing a wagering card game comprising the steps of:
   Providing a shuffled stack of playing cards where the cards are touched only by the dealer during the game comprising at least one deck thereof;
   providing a planar game playing surface comprising a plurality of separately delineated areas adapted for the placement of bets;
   establishing odds for payout of winning bets placed in any of the aforesaid plurality of separated and delineated areas;
   establishing an initial order of play where players are designated as first player, and so on to a last player;
   initiating a round of play by a first player establishing a bet by placing a wager in a designated space on the table near a pot designated and marked onto a surface for displaying a face-up side of a card dealt to each said player;
   dealing a stack of six face-down cards as a player's pot concealing the faces of each dealt card from each player and a dealer, to the first player and any other player in the game;
   dealing a stack of six face-down cards, concealing the faces of each dealt card from each player and the dealer, to the dealer as a dealer's pot;
   then, only the dealer turning the dealer's pot over and turning over the pots over for each player one at a time;
   then the dealer immediately determining a player's winning status or loss status by comparing a face-up card dealt to each player and a now face-up card dealt to the dealer in the dealer's pot;
   after comparing a dealer's face-up card to a player's face-up card, paying any winning bets placed by each player in the game;
   collecting the played or turned up cards from each pot after bets are paid and placing these cards in a discarded cards designated area on the table;
   determining whether the turned-up dealer's card matches the corresponding turned-up player's card, whereby at any time during the game or before the dealer may imposed step of disqualifying and discarding any got touched by a player.

The other asserted patents (U.S. Patent Nos. 6,626,433, 7,331,580, 7,618,044, and 7,857,314) are similar.

Slingo is alleged to have distributed an unlawful copy of BANKERS & BROKERS on their website slingo.com, which was later acquired by RealNetworks, Inc. The alleged copy of BANKERS & BROKERS is reproduced below (as retrieved from archive.org).



On December 12, 2016, Slingo moved to dismiss Scibetta’s case.  Among other assertions, Slingo claimed that all of Scibetta’s patents were invalid under 35 U.S.C. § 101.

The Court agreed. With regard to Alice step one, the Court noted that Scibetta’s asserted patent claims were substantially similar to the “method of conducting a wagering game” patent found invalid in In re Smith, 815 F.3d 816 (Fed. Cir. 2016), cert. denied sub nom., Trading Techs. Int’l, Inc. v. Lee, 137 S.Ct. 453 (2016).  Indeed, the Court noted that “there is no meaningful distinction between, on the one hand, the unpatentable abstract idea found in In re Smith and, on the other hand, the method and system claims here.”  Per the Court, the fact that some claims recited, among other things, a “‘means’ for identifying player/dealer positions” did not “change the fact that [BANKERS & BROKERS] stems from a patent ineligible abstract idea.”

With regard to Alice step two, the Court found that BANKERS & BROKERS “reflects well-understood, routine, and conventional wagering activity” such that “Plaintiffs made no technical improvement on the original abstract idea of a card wagering game using a standard deck of cards.”  The mere implementation of such a game on a computer did not change the Court’s analysis: “the claims do nothing more than simply describe the application of the game-related abstract ideas to a generic computer system.”

Scibetta’s case is not doomed.  Scibetta still has a viable claim for misappropriation against Slingo.  Moreover, while Scibetta’s trademark and unjust enrichment claims were also dismissed by the Court, the claims were dismissed without prejudice and largely based on pleading deficiencies.  As such, Scibetta will be afforded an opportunity to amend and supplement his complaint.

This case illustrates the difficulties of enforcing patents that, despite their presumption of validity, were granted prior to the Alice decision when the USPTO was using a different standard of examination.  A trend is appearing where the presumption of validity applied to those patents by courts appears to be inherently lower than that given to more recently granted patents.  Scibetta asserted five patents, and not one survived a motion to dismiss.  Those looking to acquire patent portfolios, for example, should be particularly wary of purchasing patents which may look great but may face significant hurdles during enforcement.  Sometimes, a single strong patent is worth more than a hundred unenforceable ones.

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.

On January 8, 2018, Epic Games, Inc. (“Epic”) continued its legal crusade against alleged Fortnite hackers by suing Yash Gosai, a resident of Auckland, New Zealand, for copyright infringement, breach of contract, and conversion.



 In previous cases (which we discussed here, here, and here), Epic sued alleged cheaters in Fortnite, generally targeting those distributing methods of cheating in-game. In this suit, Epic alleges that Gosai distributed an exploit which allowed players to obtained “V-bucks” (in-game currency) for free, stating: “[p]layers who use exploits to avoid paying for items in Fortnite are stealing from Epic.”

Like its previous suits, Epic used the YouTube DMCA notification/counter-notification process to acquire jurisdiction over Gosai.

AM General—the maker of HUMVEE vehicles—has sued Activision over Call of Duty’s inclusion of HUMVEE vehicles in various Call of Duty games. AM General claims trademark and trade dress infringement, among others. The complaint specifically mentions eight Call of Duty games, including Modern Warfare, Black Ops II, Ghosts, and Heroes. In addition to the video games themselves, the complaint also alleges infringement by the Call of Duty series of Mega Bloks and BradyGames strategy guides.

Image source - wikia

According to the complaint, the use of HUMVEE vehicles throughout the Call of Duty series is unauthorized. There are several issues at play in a case like this. Trademark and trade dress rights—which AM General is asserting here—are often at issue in video games. If the use of a mark creates a likelihood of confusion or dilutes/tarnishes the mark, it may be trademark infringement.

Regarding likelihood of confusion, AM General claims that the appearance of their HUMVEE vehicles in Call of Duty games implies that AM General endorsed or sponsored the Call of Duty games. And for a massively successful franchise like this one—according to the complaint, the Call of Duty franchise has generated more than $5.2 billion in revenue—AM General obviously would be interested in the revenue generated by such a license. One issue may be whether in some cases consumers would be more likely to assume the mark owner endorses the mark’s use when the mark appears in a big budget AAA game—like Call of Duty—which might weigh in favor of likelihood of confusion.

Another typical issue in these types of cases is whether the use of a particular product—e.g., a real-life vehicle—in a video game might dilute or tarnish a trademark protecting that product. The threat of tarnishment arises when use of a mark “conjure[s] associations that clash with the associations generated by the owner’s lawful use of the mark.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 31 (1st Cir. 1987). For example, if players can use HUMVEE vehicles in the game to run people over, AM General might see that as tarnishing the HUMVEE mark.

On November 6, 2017, Activision Blizzard, Inc. (“Blizzard”) filed a petition for inter partes review (“IPR”) against Game and Technology Co. Ltd. (“GAT”).  Blizzard is challenging claims 1-7 of U.S. Patent No. 7,682,243 (the “’243 Patent”).  The same claims in the same patent were challenged by Wargaming Group Ltd. (“Wargaming”) in IPR2017-01082, which Blizzard plans to join.



Activision’s IPR petition is responsive to a lawsuit that GAT brought against Blizzard in the Eastern District of Texas on July 9, 2015 (No. 2:15-CV-1257, now 2:16-CV-6499 in the C.D. Cal.).  In that case, GAT has asserted that Blizzard’s World of Warcraft infringes three patents: the ’243 Patent, U.S. Patent No. 8,253,743, and U.S. Patent No. 8,035,649.  In separate suits, GAT has sued Wargaming, Valve Corporation, and Riot Games, Inc.

The ’243 Patent generally relates to a “pilot” and a “unit associated with the pilot,” such as a player character and an animal mount.  Claim 1 of the ’243 Patent reads:

1. An online game providing method for providing a pilot and a unit associated with the pilot at an online game, the method comprising the steps of:

controlling an online game such that a player can manipulate a pilot and a unit associated with said pilot, said pilot being a game character operated by a player, said pilot representing the player, said unit being a virtual object controlled by the player;

maintaining a unit information database, the unit information database recording unit information on said unit, in which the unit information includes ability of said unit and sync point information;

maintaining a pilot information database, the pilot information database recording pilot information on said pilot, in which the pilot information includes a unit identifier indicating said unit associated with said pilot, ability of said pilot and the ability of said unit associated with said pilot;

receiving a request for update on first pilot ability information of a first pilot;

searching for unit identifier information associated with the first pilot by referring to the pilot information database;

searching for sync point information associated with the searched unit identifier information by referring to the unit information database; and

updating and recording the first pilot ability information and unit ability information associated therewith in accordance with the searched sync point information such that said ability of unit is changed proportionally to changes in ability of the pilot by referring to said sync point,

wherein said sync point information is a ratio of which changes in said ability of pilot are applied to said ability of unit, and said steps of searching for unit identifier information and of searching for sync point information are performed by a processor.

Blizzard argues that the ’243 Patent’s “alleged novelty” relates to the “sync point,” bolded above.  Per Blizzard’s petition, the ’243 Patent is anticipated because the Dungeons and Dragons Player’s Handbook Core Rulebook I v. 3.5 (“D&D 3.5”) discloses “player characters with animals whose abilities are synchronized based on ratio relationships, so that increases to the character’s abilities are applied proportionally to the animal’s abilities.”  For instance, D&D 3.5 allegedly discloses that a druid’s animal companion’s abilities increase corresponding to the class level of the druid.

More information on the Inter Partes Review process is available here.

October 27, 2017, Epic Games, Inc. (“Epic”) sued three foreign individuals–James Mendes, Konstantin Vladimirovich Rak, and Oleksey Olekseevich Stegailo–for copyright infringement, trademark infringement, false designation of origin, breach of contract, and, under California law, unfair competition.  Epic alleges that the defendants were distributing and popularizing cheats for the game Fornite.  This suit may sound familiar: Epic filed similar suits against other alleged Fortnite hackers on October 11 and on October 17.

Epic’s strategy in this case is similar to its strategy in its suit against Philip Josefsson and Artem Yakovenko: file a DMCA complaint against a video demonstrating the hacks, wait for the defendant to file a counter-notification, and use the counter-notification as basis for suing the defendant in a U.S. court.  The timing of Epic’s lawsuits appears to be the result of the timing of the defendants’ counter-notification.

On October 17, 2017, Epic Games sued Philip Josefsson and Artem Yakovenko for copyright infringement, trademark infringement, false designation of origin, breach of contract, and, under California law, unfair competition. 



The allegations against Josefsson and Yakovenko are similar to those made against Brandon Broom and Charles Vraspir.  Specifically, Epic alleges that Josefsson and Yakovenko created, marketed, and distributed cheats for Fortnite. 

Interestingly, Epic claims that both defendants, who do not live in the United States, consented to venue in the United States by participating in the YouTube DMCA notification/counter-notification process.  Mr. Josefsson is a resident of Sweden, and Mr. Yakovenko is a resident of Russia.  Both defendants posted YouTube videos displaying their cheats, and Epic filed DMCA notifications against those videos to take them down.  Both Josefsson and Yakovenko filed counter-notifications against Epic’s DMCA notifications.  Because Josefsson and Yakovenko, per the terms of the counter-notification, thereby “consent[ed] to . . . if my address is outside of the United States, the judicial district in which YouTube is located,” Epic argues in its complaint that both parties consented to be sued in the Northern District of California. 

This suit appears to be the latest in a string of suits by Epic to take “every measure to ensure [that] cheaters are removed from Fortnite Battle Royale.”

On October 11, Epic Games, Inc. and Epic Games International (“Epic”) sued individuals Brandon Broom and Charles Vraspir in two separate suits (5:17-CV-0511 and 5:17-CV-0512) for copyright infringement, circumvention of the Digital Millennium Copyright Act (“DMCA”), breach of contract, and intentional interference with contractual relations.  The suits, filed in the Eastern District of North Carolina, relate to Epic's game Fortnite.



Epic alleges that Broom and Vraspir not only cheated in Fortnite, but also assisted others in doing so on the website AddictedCheats.net.  When cheating themselves, Broom and Vraspir allegedly intentionally targeted Fortnite streamers (i.e. “stream sniping”) because, allegedly per Vrapsir, “its [sic] fun to rage and see streamers cry about how loaded they are and then get them stomped anyways.”  Epic’s complaints seem to suggest that Vraspir was particularly aggressive on cheating in Fortnite because he was banned from Fortnite: allegedly per Vraspir, his ban “unleash[ed] the beast” such that “Epic will have to take care or their game will die.”

Fortnite’s popularity in recent weeks has exploded since a recent free mode released which, some allege, provides a game mode duplicative of the massively popular PlayerUnknown’s Battlegrounds.  Some speculated that Bluehole, PlayerUnknown’s Battlegrounds’ developer, might explore a suit against Epic (indeed, Bluehole issued a public press release complaining about the similarities); however, Bluehole’s extensive reliance on Epic’s Unreal Engine 4 and ongoing licensing relationship with Epic makes such a suit seemingly unlikely.

On October 4, 2017, Landmark Networks, LLC (“Landmark”) sued Nintendo Co. and Nintendo of America (“Nintendo”) for alleged infringement of two networking patents: U.S. 6,856,966 and U.S. 6,018,720.  Landmark asserts that certain features of Nintendo’s eShop infringe its patents.


The patents asserted by Landmark originated from the Japanese company Universal Entertainment Corporation.  Landmark asserts that the patents relate to recording customer data to a “purchaser record medium,” on which both game software and “a predetermined amount of money” are written.

U.S. Pat. No. 6,018,720 Claim 1, for example, recites:

1. A data delivery method comprising:

providing a purchaser rewritable record medium having a primary data area for storing primary data including software, and an additional data area for storing additional data including purchaser inherent data, purchase data and accounting data therein;

recording historical data representing a history of the additional data in both of a computer of a software deliverer and said purchaser rewritable record medium, respectively; and

delivering the primary data, which is requested by a purchaser, from said computer of the software deliverer to said purchaser rewritable record medium when the historical data recorded in said computer of the software deliverer is matched with the historical data recorded in said purchaser rewritable record medium; and

performing an accounting operation.

The thrust of Landmark’s argument appears to be that, because the eShop entails both associating available funds and one or more games with an account, Nintendo infringes Landmark’s patents.

This case is remarkably similar to that filed by Landmark against Valve Corporation (“Valve”), Sony Corporation of America, Sony Interactive Entertainment America, and Sony Interactive Entertainment (collectively, “Sony”) in December of 2016.  The case, originally filed in the Eastern District of Texas as 2:17-CV-00855 but transferred to the Western District of Washington as 2:17-CV-00855, asserted the exact same patents against Valve’s Steam and Sony’s PlayStation Store.  That case was settled by the parties in July 2017.

On August 31, 2017, a Northern District of Texas jury awarded plaintiff iLife Technologies, Inc. (“iLife”) $10.1 million from Nintendo of America, Inc. (“Nintendo”) for patent infringement. The accused products included Wii and WiiU games, particularly Wii Sports, Wii Sports Resort, Wii Club Sports, and Mario Kart 8.


Back in 2013, iLife sued Nintendo over patents broadly relating to evaluating motions of a body. The asserted patents were U.S. Pat. No. 6,307,481, U.S. Pat. No. 6,703,939, U.S. Pat. No. 6,864,796, U.S. Pat. No. 7,095,331, U.S. Pat. No. 7,145,461, and U.S. Pat. No. 7,479,890.

Rolling Stone has reported that iLife’s body motion detecting technology is used to, among other things, monitor infants to prevent sudden infant death syndrome (“SIDS”).