The Activision v. Gibson Lawsuit

The big news last week was Activision suing Gibson for declaratory judgment after Gibson sent Activision a threatening letter claiming that the GH series infringed on one of Gibson’s patents. In layman’s terms, Activision is asking a court to declare Gibson’s patent invalid and/or that GH doesn’t infringe. The patent is here. I pause to note the shoddy journalism that went on related to this suit; how are you supposed to analyze a patent lawsuit without knowing which patent is allegedly infringed? It took a week to find some minor blog that had gotten a hold of the complaint and listed the patent number.

The broadest claim is claim 13:

13. A system for simulating participation of a user playing a musical instrument in a pre-recorded musical performance having audio and video portions, the musical instrument producing instrument audio signals at an instrument audio output when the instrument is played, comprising:

a. a source playback device for playback of the audio and video portions of the pre-recorded musical performance through corresponding source audio and source video outputs;
b. a source audio control device for controlling one or more characteristics of the audio portion of the pre-recorded musical performance during playback, the source audio control means operably connected to the source audio output and to the instrument audio output and having a controlled audio output; and
c. the source audio control device is responsive to the instrument audio signals whereby at least one characteristic of the audio portion of the pre-recorded musical performance is controlled by playing of the musical instrument by the user.

Generally when drafting a patent, you don’t want to draft claims with really long preambles if you can help it, because they limit the claim more than you’d like. What’s going to kill Gibson here is the phrase, “playing a musical instrument…the musical instrument producing instrument audio signals…” Guitar Hero simply doesn’t infringe because even if you were to consider the GH controller a musical instrument, it doesn’t produce an audio signal (at least, no more than any electronic signal is an audio signal.) It’s very clear that the instrument has to produce audio signals; see part c: “the source audio control device is responsive to the instrument audio signals.”

Prediction for what’s going to happen:

1. The court will have a claim construction hearing.
2. The court will hold that the instrument has to produce audio signals, defined (for example) as signals which produce discernable sound when output to a speaker.
3. The court will grant summary judgment for Activision shortly thereafter.

If you haven’t had much experience with patent law, this is the only real infringement analysis that matters. It doesn’t matter whether the device looks like the pictures in the patent, or whether Activision intended to copy Gibson’s idea, or anything like that. All that matters for the purposes of patent infringement liability is whether the device Gibson is using matches every element of a claim in the patent. Because the Guitar Hero system doesn’t match every element of the claim, it doesn’t infringe, period.

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As we start off with a great deal of originality…like I’m the first gameblogger to start with a post with that title. Yup, I’m real creative.

There’s a few things I want to do with this site, which I’ve started after being urged by friends to make some of my gaming criticism public that previously only was seen in friends-locked Livejournal threads. Now, such criticism can be seen by all 5 people that clicked the wrong Google link when they were looking for a more reputable review on Gamespot. Note that I don’t call what I’ll be doing here, “game reviewing,” but “game criticism.” There will never be an alphanumeric grade for any game analyzed on this site. I have philosophical reasons for this decision; it’s not just to differentiate myself from every other gaming site and to ensure that this site never gets picked up by Metacritic:

1. It’s impossible to put games of different genres on an objective scale, especially when done by one reviewer who has his own genre biases. How do you compare a 9.0/10 for Rock Band with an 8.0 for Advance Wars: Days of Ruin? (Gamespot’s ratings) Short answer: you don’t.

2. Boiling a game review down to an alphanumeric grade makes reviewing all about the consumer decision, “Is this worth my money?” I like to think our hobby has progressed beyond that, or at least progressed to the point where not every game review has to be about the consumer decision. Especially with the revolution of 2007 (for lack of a better term), we’re finally getting games exploring the artistic value of the medium, and those games need to be criticized in a way comparable to literary criticism, not merely reviewed.

In this modern era of gaming, we get news on a daily basis, and much of that news will be deserving of comment. So, I shall comment, making sure to steal the most interesting and newsworthy posts from the major gaming media on a regular basis.

This site won’t just be about game criticism, though. I’m also a law student, and assuming I graduate in 2 months and pass the bar 2 months after that, will be a lawyer, specializing in IP law. There’s nothing quite as annoying for me as seeing some of the comment threads on gaming law posts from major blogs like Kotaku and Joystiq. So, I aim to educate on game law issues, with the caveat that whatever spouts from this blog is the uneducated ramblings of a first year lawyer, and is probably inferior to what comes from Gamasutra on a regular basis. But, until I get to the point where I’m representing some of these companies, I can post public opinions on what should happen in cases like a disinterested academic, and don’t have to shut up about them like a mercenary lawyer.

Finally, as a New York gamer, there are gaming events happening around our city that are worth reporting on. Such events may include bar nights (Rock Band and Guitar Hero nights are increasingly popular, as are Wii nights), tournaments (I consider myself a strong amateur on the Guitar Hero/Rock Band circuit), game launches, and conventions and trade shows.

Now you know what to expect. I’ll update the “About me” portion of the page shortly at another time when I feel like procrastinating, and start porting over some of my LJ posts to get some content on this page.