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>Killer Hardware Can Trigger Killer Lawsuits

>All three leading console makers previewed new motion-sensing controller technology this week at E3. With the success of the Wiimote, the industry may have realized that killer controller hardware can sell consoles just as well as killer game titles. Whenever a large company launches a significant new product like a game controller, there are numerous intellectual property “clearance” issues that play out behind the scenes. Not only does the company have to worry about protecting its new hardware design from infringers, but it simultaneously has to worry about infringing everyone else’s intellectual property.

Today at E3, Sony unveiled a motion-sensing system with a controller that can translate player movement as a sword, a bat, a gun, etc., while Nintendo announced a few technological tweaks to the Wiimote. Sony’s and Nintendo’s unveilings came just a day after Microsoft announced that it developed a system that allows game control through tracking of players’ body movements. I don’t see button and joysticks going extinct any time soon, but these simpler devices may entice a few more casual gamers or non-gamers to turn on a console.

For a variety of reasons, console controllers are especially prone to patent infringement lawsuits. Nintendo’s Wiimote has already been hit with at least three different lawsuits. And, as you’ll recall, Sony had to redesign its old Dual Shock controller as a result of a patent infringement suit. Even Activision’s Guitar Hero controller has not been immune, as mentioned in a previous post here at LiaGW.

So how does a company reduce the risks of infringement lawsuits and allegations over a new hardware product? The most effective approach is to conduct a “clearance” search designed to find and analyze the most relevant patents, copyrights, trade dress, and trademark rights prior to launching the product. Before launching the next great piece of hardware, the time spent on reviewing the surrounding intellectual property landscape will often turn out to be the most valuable.

Gavin George is an associate in the Intellectual Property Practice Group of Haynes and Boone. His practice covers all areas of intellectual property law, with an emphasis on technology transactions and data privacy in the information age. His practice includes technology agreement drafting and negotiation, intellectual property analysis and due diligence, and consulting on evolving data protection and social media issues.

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