Gibson Accuses Guitar Hero of Patent Violation

robipilot writes "Video game publisher Activision Inc. has asked a federal court to declare that its popular "Guitar Hero" game does not violate a patent held by real-guitar maker Gibson Guitar Corp. Gibson's 1999 patent covers a virtual-reality device that included a headset with speakers that simulated participating in a concert, according to a complaint filed on Tuesday by Santa Monica, Calif.-based Activision in U.S. District Court in Los Angeles."

Patenting games

[CRCulver (715279)]

Couldn't the case be made that this concept is a game (who simulates participating in a concert for any reason other than entertainment?), and therefore multiple companies can realize the idea as long as they do not use terms and images from the first company?

Re:Patenting games

[cizoozic (1196001)]

Couldn't the cases be made that:

• Guitar Hero has been out for years, what were they just waiting to see if there was some money to be made from a suit?
• The game is crammed full of Gibson everything, I mean the guitar store looks more like a Gibson Factory Store than a Guitar Center. I mean who knew what a Firebird VII even was before Guitar Hero? There can't be that many Johnny Winter fans out there.

Sorry, I know these are common sense arguments, so they probably have no place in a patent discussion.

Re:

[onemorechip (816444)]

Shouldn't the patent protect a specific method of solving to a problem, rather than just the idea that the problem needs a solution? That's the whole problem with the doctrine of equivalence: Far too often, it is used to bar the implementation of alternate (in many cases, better) solutions because someone else came up with a solution first. That seems at odds with the whole advancing-the-useful-arts purpose of the patent system.

I don't know whether Guitar Hero solves the given problem in the same way that G

Too bad Gibson didn't do anything with it

[hcdejong (561314)]

If they had published a game and associated hardware, we could have been hacking the Gibson by now...

Re:Too bad Gibson didn't do anything with it

[by Anonymous Coward]

More or Less Paul?

Re:Too bad Gibson didn't do anything with it

[muellerr1 (868578)]

Would that make this guy [toolmonger.com] a Fender bender?

Real Instrument?

[j.sanchez1 (1030764)]

Engadget is reporting that Gibson's system is designed to be used with a real musical instrument. [engadget.com] Hope this gets tossed out.

Hopefully. Wouldn't be the first time.

[halivar (535827)]

They pulled this same crap with Paul Reed Smith guitars, claiming that PRS's singlecut guitar infringed their trademark. PRS was forced to stop making singlecuts for a number of years, until the injunction, and Gibson's lawsuit, was thrown out. Gibson is a bunch of litigious bastards, and that is why I will never purchase a Gibson guitar.

Why did they wait this long?

[jfbilodeau (931293)]

You gotta wonder. Why did Dibson wait this long to act on their patent? I mean, how long has Guitar Hero been around for anyways? ...I think I know the answer, and it pisses me off.

Re:

[jfbilodeau (931293)]

(oups! s/Dibson/Gibson/)

Maybe I was mixing Dilbert and Gibson. :P

Re:Why did they wait this long?

[iknownuttin (1099999)]

I mean, how long has Guitar Hero been around for anyways? ...I think I know the answer, and it pisses me off.

Gibson is run by really old guys. One day, one of them was being visited at their retirement home, where they run Gibson guitars from, by one of their college age great-grandchildren. He said great grandpa! I've been playing this awesome game called Guitar Hero! Grandpa put two and two together. He's seen the ads with that top hatted guy during TV night and was glad that he was playing a Gibson guitar. He realized it was one of the new fangled computer juke box thingys and immediately called his lawyer in the next room.

That's how it happened!

Took their time

[Smidge204 (605297)]

So I guess they just completely ignored Konami, who's had "Guitar Freaks" machines in arcades for nearly ten years at this point?

Since both "Guitar Freaks" and Gibson's patent have been around since 1999, I wonder which came first. Does prior art still count if it's in another country?
=Smidge=

Re:Took their time

[ohtani (154270)]

IANAL, but from my understanding, no it doesn't. Konami can continue to make drummania as is, for example, but apparently they cannot bring it to the US like they were hoping to do because MTV was awarded a patent for drumming games. MTV did have one in the arcade prior to Rock Band. But it just had no "game" feel to it from my understanding.

Re:

[Chrisq (894406)]

Does prior art still count if it's in another country?

In the USA it counts only if it is printed: [iusmentis.com]>

The USA regards oral disclosures as prior art only if they were made in the USA (35 US Code section 102(a): "known or used by others in this country, or patented or described in a printed publication in this or another country"). A therapeutic technique orally handed down from one generation to another by a tribe in South America can thus still be patented in the USA, despite it being publicly known (b

WHa?

[mpathetiq (726625)]

You'd think that Gibson would have realized that Guitar Hero violates their patent back in 2004 or 2005 when they signed the endorsement deal for the original game.

Re:

[h0ss (562457)]

There's probably something bigger going on here. What do you want to bet that Activision has been making noise behind-the-scenes of either dumping Gibson or making Guitar Hero 4 non-Gibson exclusive?

This is interesting...

[maxair_mike (1154515)]

I seem to remember Gibson being a sponsor/partner for at least Guitar Hero 3...I find it hard to believe that they just "forgot" about this particular patent until now, especially since Guitar Hero has been out for so long and the controller has been a Gibson guitar mockup for the past two games.

Re:

[xSauronx (608805)]

jesus h...how can you endorse something you claim infringes upon your own patent? will any sane judge do anything other than throw the case out once they hear about that?

We don't want it

[millwall (622730)]

Activision says it doesn't want or need a license under the patent.

I like that phrase. You would have thought that whether they want one or not is fairly irrelevant. Have you ever seen a case where a company wanted a license under a patent, but didn't need one? :-)

Re:We don't want it

[Corporate Drone (316880)]

Have you ever seen a case where a company wanted a license under a patent, but didn't need one?

Yes... ask any of the companies who bought licenses from SCO...

Re:

[nguy (1207026)]

You would have thought that whether they want one or not is fairly irrelevant.

Not at all. If they don't "want" a license, it means that either they think the patent is invalid and they intend to fight it, or it means that they are going to work around it.

There are good reasons to reject even a "free" license for a patent.

Have you ever seen a case where a company wanted a license under a patent, but didn't need one? :-)

All the time. Companies want licenses for patents if it is in their business interest to

Re:

[reebmmm (939463)]

where a company wanted a license under a patent

Most definitely. Most of what I do is technology licensing.

For many companies, getting a license to a patent is just as good as owning the patent (and usually without the unknown risks/costs associated with patent prosecution). In particular, an exclusive patent license basically gives the same right to exploit an invention as a patent owner would have had, and stops others from doing the same.

The problem the slashdot crowd has is a statistical one. It only get

I've patented a ... stick ... with ... buttons.

[PC and Sony Fanboy (1248258)]

If I've got a patent on something so general as to say "Umm... making music with an instrument is MY PROPERTY", no one is going to listen.

I guess Gibson is jumping on the patent troll bandwagon - maybe they believe that all the kids that would have previously bought a guitar to 'be cool' are now buying guitar hero kits?

jealous much?

[molex333 (1230136)]

Gibson is just pissed because now kids don't have to waste money on a real guitar that they will never learn how to play. Instead they can become Guitar Hero superstars in a few weeks. I'm surprised that RIAA hasn't tried to sue Activision for loss of future profits because they are reducing the music industries talent pool!

Re:

[morari (1080535)]

The RIAA has a talent pool? Surprised me.

Patent Holders are like Trolls...

[Manip (656104)]

Patent holders are like the real world equivalent of Internet trolls. As soon as you get any kind of notoriety they randomly appear spouting their trash and trying to get attention.

In this case they're a little less interested in attention and a little more interested in money but the concept is the same. The entire patent system, software or otherwise, is somewhat flawed since it lasts too long and holds back the marketplace which it was original created to help.

They should change the system so you only get five-ish years of protection on research with an automatic extension by a further ten years if you release a product using that patent into the marketplace. This will stop these silly troll companies like IBM hoarding tons of patents with very few actual products.

Link to the Patent

[Barbobot (1252798)]

http://www.google.com/patents?id=YAUZAAAAEBAJ [google.com]

Note that Gibson was clearly not thinking about video games, as it's using a real guitar--kind of like an immersive Jamey Abersold experience :-P

new patent flood?

[nguy (1207026)]

So, after patenting, for any value of X, "doing X with a computer", "doing X with a client/server system", and "doing X over the web", we are now going to get a flood of patents on "doing X in virtual reality"?

Playing both sides

[192939495969798999 (58312)]

Aren't the guitar hero "Les Paul" designs licensed by Gibson to Guitar Hero? If so, then I don't see how they can make a claim for infringement while also participating in the product's current material profit.

From the patent..."audio" signal.

[ILuvSP (625676)]

From the patent...

1. A system for electronically simulating participation by a user in a pre-recorded musical performance comprising:

a. a musical instrument, the musical instrument generating an instrument audio signal at an instrument audio output, the instrument audio signal varying in response to operation of the instrument by the user of the system;

The guitars from Guitar Hero do not produce "audio" signal at an "instrument audio output". They are not musical instruments. I think Gibson is reaching here!

Re:

[ILuvSP (625676)]

I suppose MIDI synthesizers don't product audio signal either.

The Guitar Hero guitar is nothing but a guitar shaped controller. It sends button presses that is on no way different than a regular hand-held controller. Only its shape is different.

Now if the guitar did output MIDI, then I guess the patent would be marginally closer to applying, but it doesn't.

We're in real trouble

[SpaghettiPattern (609814)]

Before we know the next corporation patents "An imaginary environment for simulated participating in the act of making love".

Guys we're in real trouble here. We're all guilty. The young ones are particularly vounrable to offending the patent multiple times a day. (We older guys envy the young ones for the favorable frequency. But I digress.)

I don't get it

[DrXym (126579)]

Guitar Hero is a ripoff of the GuitarFreaks arcade game which according to Wikipedia first appeared in February 1999. So quite possibly the game concept predates the patent.

Hm...

[morari (1080535)]

Gibson should just release their own third-party guitar controller. I'm sure as fuck not paying $70 for Red Ocatane's, when it is essentially just a shell piggybacking on all of the Wii remote's functionality. Besides, I don't intend to give anymore money to a company that doesn't even try to appease its customers within reason. It took months for them just to get those overpriced guitars out, if nothing else. Nyko really screwed up by planning to release theirs in May instead of a few months ago. They would have made a killing.

Re:

[pipatron (966506)]

What patent? I can't see any link or patent number.

Re:Crucify me, baby

[BadAnalogyGuy (945258)]

Here's a link: the patent [google.com]

Re:Crucify me, baby

[Gr8Apes (679165)]

This looks like a classic poster boy for bad patents: the abstract indicates that Guitar Hero doesn't violate anything. First off, they explictly state musician. Guitar Hero players? Not hardly. Second, they state musical instrument. I don't think 4 buttons counts as an instrument. There are also no 3-D head gear, nor headphones involved.

If you start reading the claims, the entire thing falls apart at every level. First off - there's no instrument, and certainly no audio signal generated by the Guitar Hero "guitar", which appears to be the crux of their patent. Then again, IANAIP/PL (IP/Patent Lawyer).

I'm not even sure what exactly they're patenting here. There's no "System" that I can see, other than a very high level concept drawing and what looks like a basic high level distortion processor schematic. I was under the impression that "methods" like the abstract idea being described could not be patented.

Re:Crucify me, baby

[MadAhab (40080)]

If I can't start with the patent and figure out how to build the "infringing" technology from it, it's a worthless patent.

If reading the patent doesn't give me some insight that makes building the "infringing" device easier, it's a worthless patent.

This is a worthless patent. They might as well have written "Play the guitar... on a computer!!! And see pictures!!! ZOMG!"

Re:

[kaosum (1194913)]

If you are getting legal about it, the Guitar Hero guitar is not a guitar, its a [insert selected console here] controller, in a plastic shell that resembles a guitar. You dont need their guitar controller to play the game, although it does make it easier to play the game, and it makes you look manly infront of your male gaming friends when you mastered Through the Fire and Flames by DragonForce on expert....have fun finding a girlfriend, you losers.

Re:

[Bobb Sledd (307434)]

Totally agree with you.

I am an IP paralegal and have training and real experience with patents specifically (relating to computer tech). I read the claims, and frankly, I can't see how Guitar Hero possibly infringes. There are so many claims, you would have to have that exact embodiment to infringe.

Patents are counter-intuitive: you would think that the more you claim, the better your patent; but that really isn't the case. The more ambiguous your claims, the better off you are.

For example, if I claimed

Re:Crucify me, baby

[nguy (1207026)]

Overly broad? Possibly, but sounds like it is applicable.

"Overly broad" would not a problem, and this patent isn't "overly broad".

The problem with the patent is obviousness.

If this is allowed to stand, then for any human activity, people could patent doing that activity in virtual reality, and that's simply absurd.

The whole point of virtual reality is that it lets you do real human activities, but permits you to get into situations that you couldn't get into in real life. That includes performing with a band as much as dating a super model.

Re:Crucify me, baby

[steveo777 (183629)]

The problem with this is that Guitar Hero hasn't even come close to their patent [google.com]. The patent doesn't seem to be overly broad to me.

Their patent shows that there is a VR headset attached to the player's head (though it does mention a VR 'environment'. I don't think that a TV counts). That would include the video aspect. I haven't read the whole patent, but the experience is quite the opposite of GH. Their patent covers wearing these goggles and playing from a First Person View, as explained in the second paragraph of the patent.

Another problem is that the words "prerecorded video" are thrown around a LOT. All the game play video in GH is generated on the spot.

I think the last problem is that the patent states that you would be playing a particular instrument (as opposed to an input device) so the GH guitar probably won't be covered as it doesn't produce any signals that can be representative of music.

Re:Crucify me, baby

[addie (470476)]

From TFA:

"'simulate participation in a concert by playing musical instrument and wearing a head-mounted 3-D display that includes stereo speakers.' The device described in the patent also includes playback of audio and video of a prerecorded concert and a separate track of audio from the user's instrument, according to the patent form."

- Real musical instrument
- Head mounted 3-D display
- Prerecorded concert

VS.

- Plastic guitar
- TV display
- Animated characters

Saying this patent applies to Guitar Hero is like saying that milk is the same as beer. You can drink them both, but the experience is completely different.

Re:

[NCG_Mike (905098)]

"Saying this patent applies to Guitar Hero is like saying that milk is the same as beer. You can drink them both, but the experience is completely different." Not if you're a "Newcomer" in Alien Nation ;-)

Re:Crucify me, baby

[addie (470476)]

From the patent itself:

12. The system of either claim 10 or claim 11 wherein the video display and the audio playback transducer are combined in a stereoscopic head set wearable by the user.

14. The system of claim 13 wherein the audio portion of the pre-recorded musical performance comprises a separate instrument sound track and whereby the characteristic of the audio portion controlled by the source audio control circuit is a volume level of the instrument sound track played by the system.

19. The system of claim 13 further comprising a headset wearable by the user, the headset having left and right audio speakers and a stereoscopic video display, the left and right speakers operably connected to left and right channels on the source audio output and to the controlled audio output, and the video display operably connected to the source video output.

21. A system for allowing a player using a guitar to control simulated participation in a musical concert during synchronous playback of a pre-recorded concert video track, pre-recorded left and right concert sound tracks, and a separate pre-recorded guitar track, the system comprising:

27. The method of claim 26 wherein the musical instrument is a guitar.

I'm not sure which patent you were reading...

Re:Crucify me, baby

[skrolle2 (844387)]

It still fails to cover Guitar Hero, because claim 1a says:

a musical instrument, the musical instrument generating an instrument audio signal at an instrument audio output,

That, and all the variants of it, consistently mention that the device you use for participation is something which itself produces audio, and that the entire system somehow intercepts this audio to change the experience. The Guitar Hero controller does not create audio output (other than irritating clicking noises :) ) and I think that that might be enough to claim that they are not violating the patent.

Re:

[bcat24 (914105)]

Exactly. The patent appears to cover a "real" guitar, complete with its own audio output. On the other hand, a Guitar Hero "guitar" is really just a fancy (PC|Playstation 2|Playstation 3|Wii|Xbox 360) controller.

Re:

[russotto (537200)]

I mean, suppose you think about something that could be done, not the how, really, but the product, the result. You just go ahead and patent it. One day, someone creative, resourceful will be able to implement it and -- there -- you pull your patent out of the drawer!

Yes. The Supreme Court noticed this tendency in Atlantic Works v. Brady in 1882.

"It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented mono

Re:

[morari (1080535)]

As if it matters what your fake guitar looks like...

Re:

[Darby (84953)]

I think they would be hard pressed to convince anyone that the junky plastic toy used in GH is comparable to a Les Paul...

Although I would find it totally amusing to watch *Gibson's* lawyers try and convince a court that they are comparable.