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Patent Markings May Spell Trouble For Activision 82

Posted by Soulskill
from the almost-rocket-docket dept.
eldavojohn writes "If you pick up your copy of Guitar Hero and read the literature, you'll notice it says 'patent pending' and cites a number of patents. A group alleges no such patent pends nor are some of the patents applicable. If a judge finds Activision guilty of misleading the public in this manner, they could become liable for up to $500 per product sold under false patent marking. The patents in question seem to be legitimately Guitar Hero-oriented, and little is to be found about the mysterious group. The final piece of the puzzle puts the filing in Texas Northern District Court, which might be close enough to Texas Eastern District Court to write this off as a new kind of 'false patent marking troll' targeting big fish with deep coffers."
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Patent Markings May Spell Trouble For Activision

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  • by mano.m (1587187) on Tuesday February 23, 2010 @07:48AM (#31242864)
    I invented trolling for false patent markings (patent pending).
    • by null etc. (524767)
      This inevitable comment is why I dread reading any /. story about patents.
    • Well, tough shit, cause I invented invention itself! (Patent #3735928559.)

      Oh, and green is house. Because I say so. Just as coocoo is tetracell white. Also because I say so. And I own you like a slave. Because I said so.

      </delusional-“IP”-“owner”>

  • by ZeroExistenZ (721849) on Tuesday February 23, 2010 @07:51AM (#31242888)

    Guess someone in the patents-cubicle zoned out and forgot to follow up on his email properly..

    "Oh those patents, yes, they're sent off..."
    "What are those patentnumbers, we need them for printing.."
    *searches inbox on 'patent issue'* "Here's a list, let me put it in excel for you.."
    "kthx!!"

    • by eldavojohn (898314) * <eldavojohnNO@SPAMgmail.com> on Tuesday February 23, 2010 @08:06AM (#31242986) Journal

      Guess someone in the patents-cubicle zoned out and forgot to follow up on his email properly..

      "Oh those patents, yes, they're sent off..." "What are those patentnumbers, we need them for printing.." *searches inbox on 'patent issue'* "Here's a list, let me put it in excel for you.." "kthx!!"

      I have no expertise even remotely in this area but, as the submitter, I looked up all the patents mentioned in the claim. A lot of them seem to do with specifics about the controllers like the drum set, guitar or even the mixing board for DJ Hero. But basically each seems to cover many aspects of how these input systems allow the user to 'learn' and how the played track is replayed over the recorded audio. Take 5739457 [google.com] for instance, it seems to focus entirely on the electronic drum sets of Guitar Hero. I think what happened here was that the patent markings were put on every single dust jacket for several Guitar Hero products -- regardless of whether or not they came with the hardware to play the game. So you go pick up your stand alone disc of Guitar Hero and there's no plastic drum with it because you bought just the disc or maybe the guitar-only distribution. That was about as far as I could see them going with these claims. That the person buying that may be confused that the product they bought is covering patents that promise something grander than what they bought.

      A really interesting implication for anyone that makes hardware. What if all XBox packs had the same generic patent markings and the arcade came with patent markings for the headset and wireless attachment (not included in arcade)?

      Should this sort of thing be prosecutable? Should Acitivision really get any sort of judgment against them for this level of carelessness?

      • So you go pick up your stand alone disc of Guitar Hero and there's no plastic drum with it because you bought just the disc or maybe the guitar-only distribution.

        The 457 patent also appears to be a software patent covering the method of play of Konami's DrumMania. The Guitar Hero and Band Hero games from World Tour on contain code implementing the DrumMania methods, even if the controller isn't bundled.

      • Re: (Score:2, Interesting)

        by leuk_he (194174)

        Oh yes... Activision should get a judgment, but only for 500$ times the number of unique boxes the "Patent Compliance Group, Inc." actually bought for their own use, and they did prove they did actually bought in the filing. (and a copy of a box is not an extra offense i should think)

        Like the advertising clause, it is not for every copy of a advertisement, it is once for all the copies.

        And even then, the judgment should be paid to the US state, not to some private lawyer team.

        As state in the comments before

      • Re: (Score:2, Insightful)

        by joetomato (1073508)

        Should this sort of thing be prosecutable? Should Acitivision really get any sort of judgment against them for this level of carelessness?

        Absolutely not - who as a consumer goes to a store, copies down the patent numbers, goes home to look them up then buys the product solely based on what they find, completely ignoring the much more obvious "CONTROLLER SOLD SEPARATELY" warning?

  • by WrongSizeGlass (838941) on Tuesday February 23, 2010 @08:06AM (#31242988)
    ... numbers from Patent Hero, the newest game from Activision - you play along with the patent process but aren't really applying for them?

    You hold the pen. You fill out the forms. You are the Patent Hero!
  • by Trepidity (597) <delirium-slashdot AT hackish DOT org> on Tuesday February 23, 2010 @08:06AM (#31242990)

    As the article notes, these have become common lately. Groups going under names like the one here, "Patent Compliance Group", spend their time digging through product literature looking for "patent pending" claims, and then dig to see if a patent really is pending. In some small percentage of cases, it isn't, and they hope to make enough money on those to justify the endeavor.

    I mean, I don't like false advertising, but somehow this particular cure seems even worse than the relatively minor disease of a game claiming it has a patent pending when it doesn't. Given that anyone can file a patent for pretty much anything, it's not like "patent pending" is worth much as a claim anyway.

    • Go for it! (Score:1, Insightful)

      by Anonymous Coward

      "Patent pending" is enough for some people to think they shouldnt use the idea at all.
      "Patent pending" is enough to hinder innovation and stifle creativity.
      If someone can go after these companies marking everything as "patented", even with false claims, I say go for it.

      Our forefathers must be heating up in their graves as their rolling per minute increases.
      Who are these pricks anyway, patenting stuff. It's like nobody else should come up with an idea, because that has never happened before.
      Total and utter p

      • Re:Go for it! (Score:5, Insightful)

        by DavidTC (10147) < ... > <neverbox.com>> on Tuesday February 23, 2010 @12:33PM (#31245576) Homepage

        Um, no, patent pending is the opposite of stifling creativity.

        Patents stifle creativity. Patent pending lets you know what patents to look up.

        Society needs to be warned about pending patents, so that people won't waste their time developing something identical, and then learn it is patented. That is much most stifling of creativity than 'Here is a list of things you should look up before developing a product like this'.

        You can argue that patents are bad, but you cannot possibly argue that 'knowing patents exist before spending time and money developing a product' is bad.

        I'm actually amazed it's any sort of crime, and it certainly shouldn't be per instances. It's the equivalent of printing 'may contain peanuts' on food that does not, in fact, contain peanuts.

        I mean, an argument can be made that an overkill 'patent pending' use can result in the person being unable to find the actual relevant patent by throwing too much chaff in there, but these patents are relevant...if you're using the software you purchased, you're using the patents. You're just using them on the hardware you bought separately. The government should just order them to correct the error.

        • Re: (Score:1, Insightful)

          by Anonymous Coward

          patent pending doesn't tell you anything - rarely are published patent numbers put on a product AND a patent application may not even be findable for the first 18 months of its existence because it hasn't published yet.

          I fail to see how something sitting at the patent office waiting to be reviewed help society, but after it is examined and granted it then stifles creativity. In fact, by your argument, the issued patent number itself tells you exactly what to look up to see what's has been covered; "patent p

    • by courteaudotbiz (1191083) on Tuesday February 23, 2010 @09:45AM (#31243684) Homepage
      What a great way to collect "taxes". Did anyone ever questionned the fact that these groups may be funded by the government to deter false "patent pending" claims?

      I mean, I don't think this is so bad that they are funded by the USPTO, but at least, they could be more transparent and simply say what they are.

      And since I'm pretty sure that no money go in the pockets of those groups when they deter a false "patent pending" claim, I'm also pretty sure that they do not have a dime to fund their research. So who would do this job for free?
      • Re: (Score:1, Interesting)

        by Anonymous Coward

        What a great way to collect "taxes". Did anyone ever questionned the fact that these groups may be funded by the government to deter false "patent pending" claims?

        I mean, I don't think this is so bad that they are funded by the USPTO, but at least, they could be more transparent and simply say what they are.

        And since I'm pretty sure that no money go in the pockets of those groups when they deter a false "patent pending" claim, I'm also pretty sure that they do not have a dime to fund their research. So who would do this job for free?

        OK maybe this isn't the most paranoid conspiracy theory I've read about, but it is one of the more illogical. Why would the government bother to setup a shadowy organization to sue in situations like this when there is no reason not to use more above-board means. Anyone, including government employees on their own time, can file a civil suit like this! As for the profit motive, maybe there isn't one. Perhaps this is actually a group of concerned citizens who see themselves in the same light as the EFF.

  • by tepples (727027) <{tepples} {at} {gmail.com}> on Tuesday February 23, 2010 @08:06AM (#31242992) Homepage Journal

    The final piece of the puzzle puts the filing in Texas Northern District Court, which might be close enough to Texas Eastern District Court to write this off as a new kind of 'false patent marking troll' targeting big fish with deep coffers.

    Troll? Hardly. The Electronic Frontier Foundation routinely files lawsuits like this one on the public's behalf. Compare PCG's lawsuit against alleged patent fraud to EFF's investigations and other actions against alleged copyfraud [eff.org]. So what's the big difference between a "false patent marking troll" and EFF?

    • Re: (Score:2, Insightful)

      by machine321 (458769)

      Slashdot tells us to love EFF, and hate patents. Besides, that's copyright, which we're supposed to hate except the GPL, and this is patents. I know it's complicated, but you've got to keep track!

      • by digitig (1056110) on Tuesday February 23, 2010 @09:01AM (#31243320)
        Slashdot doesn't tell you anything. Slashdot is a collection of individuals. Some of them tell you one thing, others tell you something different.
        • Re: (Score:1, Offtopic)

          by tepples (727027)

          Slashdot is a collection of individuals. Some of them tell you one thing, others tell you something different.

          Until you get to moderation. For each comment, moderators and metamoderators can choose to promote or bury it, with cause (Insightful, Flamebait, etc.) or without cause (*rated). The "consensus" or "groupthink" on Slashdot can be observed from what comments get routinely modded up and what comments get modded down. The editors can influence this consensus by banning moderators.

          • Re: (Score:2, Insightful)

            by Lostlander (1219708)
            I think you may be confusing groupthink with people who are bored or really have so little to do that they bother to moderate.
          • Re: (Score:1, Informative)

            by Anonymous Coward
            You can adjust your settings to ignore moderation scores so no comments would be "promoted" or "buried". Digg has this setting also (just in case you were confusing the two. You see, digg is the site where comments get "buried", not /.).
        • Slashdot is a collection of individuals. Some of them tell you one thing, others tell you something different.

          We are Slashcutus of Borg. Resistance is futile.

      • by MarkvW (1037596)

        How does slashdot tell us to love the EFF? Tell me please. I want to know about this love!

    • by arth1 (260657) on Tuesday February 23, 2010 @09:04AM (#31243332) Homepage Journal

      So what's the big difference between a "false patent marking troll" and EFF?

      EFF doesn't file in Eastern Texas. In my opinion, anyone who files for a case related to patents and copyrights in Easter Texas does it to take advantage of the sham court system they have established there.

      Also, from what I can tell, EFFs purpose of suing isn't to line their own pockets, but to strike down invalid patents and patent claims because it stifles innovation. That difference in intent is striking, isn't it?

    • Re: (Score:3, Informative)

      by itsdapead (734413)

      So what's the big difference between a "false patent marking troll" and EFF?

      Well, the obvious difference is that most of the EFF actions in the article you linked to involve them defending people who have actually received DCMA takedowns, C&Ds or similar nastygrams from the people dubiously claiming copyright infringement.

      By contrast, if Activision have actually been threatening people over their (allegedly) false patent claims then TFA neglects to mention it.

      • Well, the obvious difference is that most of the EFF actions in the article you linked to involve them defending people who have actually received DCMA takedowns

        Activision produces Guitar Hero series under license from Konami, owner of patent rights in the Guitar Freaks and DrumMania franchises. Konami already managed to sue Roxor Games into oblivion for In the Groove, a spiritual sequel to Dance Dance Revolution.

        • by itsdapead (734413)

          Well, the obvious difference is that most of the EFF actions in the article you linked to involve them defending people who have actually received DCMA takedowns

          Activision produces Guitar Hero series under license from Konami, owner of patent rights in the Guitar Freaks and DrumMania franchises. Konami already managed to sue Roxor Games into oblivion for In the Groove, a spiritual sequel to Dance Dance Revolution.

          Well, if the "Patent Compliance Group, Inc." is defending Roxor, or if they are going after Konami, or if the patent that Roxor violated is one that PCG asserts is being falsely claimed then show me, and I'll happily concede the point.

          Meanwhile, I don't think anybody is crying bitter salty tears for Activision. However the existance of IP "bounty hunters" looking to profit from anybody who steps on the cracks in the legal pavement, whether or not anybody has actually been damaged, is not good news for any

          • Well, if the "Patent Compliance Group, Inc." is defending Roxor, or if they are going after Konami

            If PCG is working on behalf of a video game developer, then my first guess is that PCG is 1. going after Activision for Activision's patents and 2. going after Activision for the patents it licensed from Konami as a first step toward going after Konami.

            • by DavidTC (10147) < ... > <neverbox.com>> on Tuesday February 23, 2010 @12:40PM (#31245672) Homepage

              Okay, to recap what is actually happening for insane people who have no reading comprehension: No one is going after any patents whatsoever.

              Some extraneous 'patent pending' numbers were printed on software boxes. No one has even slightly indicated that anyone would attempt to 'enforce' said patent-printing mistakes, or that other people wish to use said patents on their software, because the patents do not even relate to software.

              Again: There are no actual patents involved at all. The 'offense' was a box that asserted that various pending patents applied to it, when they clearly do not, and no one is even slightly asserting they do. No one is attempting to enforce any patents, no one is attempting to strike down any patents. The patents mentioned will remain valid (For the things they actually apply to) even if this suit succeeds.

              Apparently, falsely claiming you have a patent pending is a civil liability, as is claiming a pending patent applies to something it doesn't, and groups have arisen to run around suing people for this. This is the story of one of those groups.

              • by tepples (727027)

                No one is attempting to enforce any patents, no one is attempting to strike down any patents.

                Yet. There are three ways it can play out:

                • Activision can prove in court that its product is patented, and the scope of the patents owned or licensed by Activision becomes clear to competitors.
                • Activision can fail to prove that its product is patented, and the scope of the patents owned or licensed by Activision becomes clear to competitors.
                • Activision can leave it ambiguous, and the anti-patent troll responds: "Grant $developer a license to your game's patents, or we'll seek class action status for every bo
                • by Bigjeff5 (1143585)

                  Man, your reading comprehension is terrible.

                  There are no actual patents involved in this case, period. There can be no judgement for or against a patent in this case, because there are no patents involved. No patent will be "clarified" accept to say that yes it does exist (or at least its application exists) or no it doesn't, and yes it does apply or no it doesn't apply. That's it. Nothing is going on with the patent itself, at all.

                  What is involved is a statement of patents pending which, if there were

                  • Re: (Score:3, Insightful)

                    by DavidTC (10147)

                    Man, your reading comprehension is terrible.

                    Indeed. This entire discussion is a rather blatant example of the failure of moderation. Half the people here seem to think we're actually discussing whether a patent is valid or not.

                    Actually discussing whether or not the large fine makes sense in this day and age, when it's fairly easy to look up patents, is another thing, as is whether or not it should apply if you do it accidentally, and a real discussion we could actually be interesting.

                    Likewise, an argum

            • PCG is going after several companies, including Timex, Brunswick, and Wright Medical. This type of lawsuit is essentially an extortion scheme, though IANAL.

    • by smartr (1035324)
      uhh... I don't think it's hard to tell the difference between a nonprofit consumer protection group like the EFF fighting fraudulent claims of ownership based on complaints and a mysterious "Patent Compliance Group, Inc." that seems to hunt for supposed fraudulent patent claims. To me, that's apples and oranges (yes they're both fruit!). I don't know how they come off thinking Activision Blizzard is making these claims for the "purpose of deceiving the public", and I further don't see how this group should
      • by tepples (727027)

        If the state was going after ATVI, or this was some class action suit, this might make some vague sense

        The latter might happen. See my other comment [slashdot.org].

  • Are they a 'false patent marking troll' for going after Activision? Or is Activision the troll for covering their products with misleading patent information? Or are they both trolls? Seems like it should be some sort of patent regulatory body that prosecutes such things; what are they up to?

    • Re: (Score:3, Informative)

      by camg188 (932324)
      It's a money grab, a shakedown. Patent Compliance Group filed a "qui tam" action.
      Qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed (from wikipedia).

      Does anyone have any info on Patent Compliance Group, Inc.? Even though they are incorporated, I can't find any information about them, like who is on their board and where they are located.
  • one or more (Score:2, Interesting)

    by CockMonster (886033)
    "Covered by one or more of the following patents..." seems to me they have their ass covered
    • by Bigjeff5 (1143585)

      The law doesn't work that way. Misrepresentation is misrepresentation, and if interstate comerce is involved it's fraud.

      Now, that doesn't mean you leave out the ass covering statement, because they might be able to show that they did not intend to mislead anybody, and it was just a mistake that was missed. That can work, because intent is 9/10 of the law, but is by no means a given, they will still have to fight for it and hard.

      You've got to remember that just because someone wrote it down doesn't make it

  • qui tam (Score:3, Interesting)

    by camg188 (932324) on Tuesday February 23, 2010 @10:27AM (#31244130)
    I was wondering why a third party would be bringing legal action against Activision for allegedly violating federal patent law because it seemed to be a criminal, not a civil case. Then I look up the definition of "qui tam"
    Qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed (from wikipedia).
  • by Blakey Rat (99501) on Tuesday February 23, 2010 @11:14AM (#31244702)

    So Activision is being sued because they put "patent pending" on a product that doesn't actually have a patent pending. Ok, with you so far.

    But then the summary adds this:

    The patents in question seem to be legitimately Guitar Hero-oriented, and little is to be found about the mysterious group.

    If there are patents in question, then ... why are they being sued? Either they have pending patents or they don't, right?

    • If there are patents in question, then ... why are they being sued?

      Because, although the patents were "valid", they referred to articles not included in the box (such as patents on the drum set, on a box that contained only the software and the guitar).

    • Re: (Score:3, Informative)

      by DavidTC (10147)

      The pending patents are for hardware, not software. They cannot apply to a box of software people purchase.

      Okay, everyone seems to be very ignorant here, and the article isn't explaining this, so I guess I have to give a damn history lesson:

      The US government requires that you put notification of patent use on things you sell. (Either your own patent, or something you've licensed from someone else.)

      That is fine for issued patents, but what about pending patents? Remember, you can use something for up to a

  • by s-whs (959229) on Tuesday February 23, 2010 @11:36AM (#31244924)

    This reminds me of the 'Abmanhnungen' in Germany. In both cases it's gaming the system and should be severely punished...

    For many years in Germany attorneys have gamed the system, related to what you are allowed and not allowed to do esp. when selling something. These 'people' have for example scoured ebay ads, and when they found say a missing telephone number or missing note on how to undo the deal for a business seller, they sent such a 'Mahnung'. Not for free obviously, no, with an invoice for payment (for their own time/effort!). Yes, you will have to pay... It gets even worse. Suppose you've got an old magazine with old demo software disk on it and put it on ebay.de (as a German, I don't think you can be touched if not), then you'd better check there are no programs on there that are now forbidden. DVD copying software for example that circumvents the protection scheme is no longer allowed since several years.

    People have been sent a 'Mahnung' for putting a mag with such no longer allowed software on ebay, and had to pay large amounts of money to such 'scammers'. You think you get a few euros, but you have to pay many hundreds. Nice.

    These people are the worst kinds of assholes around just as the guy I mentioned in a previous posting, 'Pieter Lakeman' (who created a foundation supposedly to help clients of the DSB bank with supposedly bad loans, but in reality this foundation just pays his 300 euro/hour salary and there were hardly any bad loans anyway; He then influenced people to take away their money from DSB which led to its collapse. Nice!), and I consider them to be legal scammers.

    See for one notorious guy, who was sentenced to jail for other things, this page (it didn't end well for him and I don't think many people will give a damn, he was really hated as one can see in many forums...): http://de.wikipedia.org/wiki/G%C3%BCnter_Freiherr_von_Gravenreuth [wikipedia.org]

    • I just read some "sad" news on Slashdot - The infamous lawyer Günter Freiherr von Gravenreuth [gravenreuth.de] was found dead in his Munich student club this morning. He gave himself the deadly shot just as police special units looking for him were busting down the doors. I'm sure nobody in the Slashdot community will miss him - even if you didn't receive any of his "Abmahnungen", there's no denying his contributions to popular culture. Truly a German icon. He will not be missed.

      Now, don't anybody dare to mod this as

  • Stamping "Patent Pending" on a product has no legal effect. It just makes you feel good.
    • I disagree. Speech on products is highly regulated and printing a false claim on your product SHOULD be actionable. Printing patent pending while not actually having a patent pending is misleading. Patents are legal instruments, do not invoke them trivially.
  • While we are one big state of Palin-worshiping Bible-thumping pro-life conservatives, I find the insenuation that those of us from North Texas just want to hunt and fish insulting. We care about cows, oil, airlines and fighter jets here.

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