Update: Gibson Patent Lawsuit

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.

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.