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The Few, The Proud, The Patent-Eligible Software Claims

The Few, The Proud, The Patent-Eligible Software Claims

It is no secret that it is difficult for software technology patent claims to be deemed subject matter eligible under 35 U.S.C. ?º 101 on appeal, as only a handful of cases involving software technology have passed ?º 101 scrutiny by the Federal Circuit since the Supreme Court?ÇÖs decision in Alice v. CLS Bank[1]: Until recently, there have been only three such cases: DDR Holdings, LLC v. Hotels.com, L.P.,[2] Enfish LLC v. Microsoft Corp.,[3] and BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC.[4] However, now a fourth case may be added to those ranks. On September 13, 2016, the Federal Circuit decided McRO, Inc. v. Bandai Namco Games America Inc.,[5] ruling that claims directed to automating part of a preexisting 3-D animation method were patent-eligible under ?º 101. Below is a review of the McRO case facts, the legal reasoning of the Federal Circuit in reaching its conclusion, and… Continue Reading

Lessons in Privacy Policy Drafting from LinkedIn Data Breach

The litigation instigated by LinkedIn users in the wake of the recent data breach holds a vital lesson about the drafting of website Privacy Policies for social media companies and other website operators that gather personal data.?á Attentive website operators that learn this lesson and apply it to their own Privacy Policies can decrease the chance they will face similar litigation in the future. LinkedIn stated in its Privacy Policy that all information that users provide to LinkedIn would be protected with ?Ç£industry standard protocols and technology.?Ç¥?á This statement at first glance seems innocuous, and similar statements are common in Privacy Policies across the Web.?á However, the term ?Ç£industry standard?Ç¥ provided an easy basis for users affected by the data breach to claim LinkedIn?ÇÖs data protection protocols were inadequate, and not ?Ç£industry standard.?Ç¥?á The lesson here for website operators is to avoid statements in Privacy Policies about the presence and… Continue Reading

Wands and the Wii

The makers of the interactive game “MagiQuest,” Creative Kingdoms LLC, have filed an International Trade Commission (ITC) complaint against Nintendo alleging that the importation of the Wii infringes its patents relating to motion-activated handheld devices. MagiQuest is a live-action adventure game, often installed at tourist destinations, where players use a wireless infra-red wand to interact with scattered physical objects. In its complaint, Creative Kingdoms claims that its patents covering these wands also cover the Wii motion controller. The complaint states: “The distinguishing feature of both MagiQuest and the Wii system is a motion-activated, portable wireless handheld device that facilities a physically interactive play experience for participants… Nintendo infringes U.S. Patent Numbers 7,500,917; 7,761,637; 7,850,527; and 7,896,742 through importation of its Wii system and remote control.” The goal of a complaint at the ITC is to block the importation of the infringing product (the Wii, in this case) into the U.S.… Continue Reading

>Gibson Brings Another Defendant On-stage

>Gibson has filed suit against another defendant alleging infringement of its concert simulation patent. This time, it involves Seven45 Studios’ new video game Power Gig: Rise of the SixString. Gibson lost its first suit involving the same patent against Activision in 2009. In June of 2010, Gibson settled with Harmonix, Viacom, and EA in a similar suit.

>MDY v. Blizzard – The Court of Appeals Weighs-in

>As you may recall (and as we’ve been covering), last January, an Arizona District Court found that using MDY’s Glider bot program in conjunction with Blizzard’s World of Warcraft game software fell outside the scope of the game’s End User License Agreement (EULA). The District Court then held that MDY is responsible for players running Glider outside the scope of the EULA, and awarded Blizzard a $6.5 million judgment against MDY for copyright infringement. MDY appealed the case to the Ninth Circuit Court of Appeals, which recently issued its own decision. The Ninth Circuit overturned the District Court?ÇÖs finding of copyright infringement, but nevertheless held MDY liable for breach of the EULA on a different ground ?Çô violation of the Digital Millennium Copyright Act (DMCA).The Ninth Circuit held that using Glider while playing World of Warcraft in violation of the EULA did not amount to copyright infringement. The Ninth Circuit… Continue Reading

>The End of Used Video Games?

>Are you one of the 75 million used video game purchasers in the U.S? Or, are you one of the 26 million used video game sellers looking to subsidize your next game purchase with a trade-in? If so, you might not want to delay too long before making your next trip to GameStop. The Ninth Circuit Court of Appeals recently ruled that Timothy Vernor, an eBay seller of used commercial versions of Autodesk’s AutoCAD, is not permitted to sell used AutoCAD discs under copyright law. The court held that the “first sale” doctrine that traditionally protects used book sellers from charges of copyright infringement does not apply to used software sellers. The court based this distinction on the finding that the company that originally sold its old copy of AutoCad to Vernor was not an owner of software, but merely a licensee. The court held that a software user is… Continue Reading

>Boomshine v. ChainRxn update

>As we covered back in March, casual game designed Daniel Miller filed a complaint in the Northern District of California, accusing the creator of a copycat game, known as ChainRxn, Yao Wei Yeo, and Facebook, of copyright infringement. The federal judge hearing the case has recently issued a ruling refusing to dismiss the suit, shooting down a argument by Facebook that Miller didn’t properly allege infringement based solely on how the two games ?Ç£look and feel.?Ç¥ Miller?ÇÖs complaint accused Yeo of direct copyright infringement, claiming he improperly accessed the source code for Miller?ÇÖs game Boomshine to create ChainRxn. Facebook had argued that Miller didn?ÇÖt adequately plead direct infringement by Yeo, because Miller?ÇÖs bare complaint that ChainRxn ?Ç£looks and feels?Ç¥ identical to Boomshine is insufficient to allege that Yeo had copied the game source code. The Judge disagreed with Facebook, noting that a plaintiff can rarely examine a defendant?ÇÖs source code… Continue Reading

>Casual Games and Casual Copying

>Imagine releasing a new flash game on the net and then finding out that someone else made your game into a Facebook/iPhone application without your knowledge. The designer of a certain casual game, Boomshine, Daniel Miller, doesn?ÇÖt have to imagine. His story illustrates why it’s important to understand and consider the range of intellectual property protections available for your next game. Miller has filed a complaint in the Northern District of California, accusing the creator of a copycat game, known as ChainRxn, Yao Wei Yeo, and Facebook of copyright infringement, and improperly allowing the game to remain posted even after being notified of the alleged infringement. In both Boomshine and ChainRxn, the game begins with a set of multicolored dots bouncing around a black background. The player?ÇÖs only interaction with the game is a single click to create an initial white circle, which causes any of the dots that collide… Continue Reading

>False Marking Suit Targets Activision

>A couple of weeks ago, Patent Compliance Group filed a qui tam action against Activision, alleging that Activision falsely marked Guitar Hero 5, Band Hero, DJ Hero and Guitar Hero Smash Hits with inapplicable patent numbers or improperly as ?Ç£patent pending.?Ç¥ This suit is one of a still-swelling movement of false patent marking suits following closely on the heels of the Federal Circuit?ÇÖs recent decision in Forest Group, Inc. v. Bon Tool Co., which held that damages for false patent marking should be calculated on a per article basis. This result has been that technology companies that sell large numbers of articles to consumers (e.g. video game companies) are at a high-risk of being targeted by one of these suits. A qui tam suit is actually brought on behalf of the U.S. government and provides for a fine of up to $500 for each improperly marked article. However, courts may… Continue Reading

>Korea Inches Closer to Virtual Currency

>We’ve previously discussed here on the blog the increasing interplay between virtual assets and real-world money. In the coming years, the waves of government regulation and legal action will continue to build amplitude as the virtual assets created within virtual worlds become more easily and profitably converted to real world money. With virtual worlds growing in size and the online gaming player population booming, the development of the law in this area will have wide-reaching ramifications. The Supreme Court of Korea marked its involvement on Sunday, ruling that virtual currency used in online games may be exchanged for real-world cash. The ruling was the result of the acquittal of two gamers, who were originally charged with violating a Korean law targeted at online gambling, which banned the exchange of virtual currency for hard currency. The gamers were accused under the law with selling virtual currency know as “Aden” from a… Continue Reading

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