Gibson has apparently responded to Activision’s complaint for declaratory judgment with all the grace and temper of a spoiled fanbaby, and they not only countersued Activision for patent infringement, they’ve sued a whole bunch of retailers, and Harmonix and Red Octane. Kotaku reports on Harmonix’s press release in response to the lawsuit, reproduced below:
It is unfortunate that Gibson unfairly desires to share in the tremendous success enjoyed by the developers of Rock Band and Guitar Hero. This lawsuit is completely without merit and we intend to defend it vigorously.
Gibson’s patent, filed nearly 10 years ago, required a 3D display, a real musical instrument and a recording of a concert. Rock Band and Guitar Hero are completely different: among other things they are games, require no headset and use a controller only shaped like a real instrument.
100 points to Harmonix’s PR department for actually explaining why they don’t infringe; they are, of course, correct–though they seem to be responding to the abstract rather than the claims. The abstract states:
A musician can simulate participation in a concert by playing a musical instrument and wearing a head-mounted 3D display that includes stereo speakers. Audio and video portions of a musical concert are pre-recorded, along with a separate sound track corresponding to the musical instrument played by the musician. Playback of the instrument sound track is controlled by signals generated in the musical instrument and transmitted to a system interface box connected to the audio-video play back device, an audio mixer, and the head-mounted display. An external bypass switch allows the musician to suppress the instrument sound track so that the sounds created by actual playing of the musical instrument are heard along with the pre-recorded audio and video portions.
The claims do require an actual musical instrument, but don’t require a 3D interface or a musical concert (some of the dependent claims talk about a 3D interface and concert, but not the independent claims.) Remember, in patent law, it’s the claims that lay out the boundaries of the invention; the rest of the specification can help to define the words in the claims but can’t substantially change the limitations of the claims.
In a typical patent prosecution, a drafted patent goes back and forth between the lawyer and the Patent Office (hereafter PTO). During this process, the PTO will search the prior art, and object to claims; the lawyer will then either argue back that the objection isn’t good, or modify the claim to avoid the objection for every claim. Eventually, when the PTO runs out of objections, they have to grant the patent. The specification usually goes unchanged in this process. What this means for the layman is that the abstract is actually not a good description of the invention the patent actually claims, and shouldn’t be relied upon for public opinion. When you look at a patent, go to the claims, not the abstract.
