In the business of video games, intellectual property protection is critical to success, and Patents, Copyrights, and Trademarks are the bricks with which your IP portfolio is built. The Patent Arcade is the web's primary resource for video game IP law, news, cases, and commentary.
Hey everyone, we're excited to announce that the Patent Arcade will be getting a new look and feel in the coming weeks. We're upgrading the platform we operate on to provide some advanced features for our users, and to better organize our data. Please be patient as we work through the transition, fix some bugs, and we apologize in advance for any service disruptions. Your Editors, Ross & Scott
U.S. Patent No. 6,488,505: System and method of vehicle competition with enhanced ghosting features Issued December 3, 2002, to Midway Games West Inc. Priority Date July 15, 1999
U.S. Patent No. 6,488,505 (the '505 Patent) concerns “ghosting” in auto-racing games, a process where a player races against a previously recorded best-effort of a previous player. The '505 Patent is a one of a number of ghosting patents which originated from a mode in the Atari arcade game Hard Drivin’. Hard Drivin' was the first car racing game that allowed players to race against a translucent “ghost” recording of a previous race. In this particular patent, if a player finishes a race time fast enough, they are rewarded with free game time. If a player beats the sufficient time to qualify for a free game, this data would be stored in the game along with the finish time and the name of the player. The patent allows the storage of past routes of the cars over which the ghost car travels. By accumulating a plurality of competition scores from multiple past competitions, the game selects one of the scores as the threshold for free game time. The score is calculated according to the ability of the players in the system. Once a player surpasses that threshold, they receive the award.
A system and method for computerized competition useful for rewarding a player. The system and method may be utilized in arcade games, personal computer games, dedicated video games, networked games, and simulators. The method may include selecting a target reward level or threshold such as by selecting a score from a list of past scores, and dynamically adjusting the reward level according to the ability of the players of the system. The method may further include adjusting the playback of a previous competition sequence according to the adjusted reward level. In one embodiment, a previous vehicle race sequence is stored and played back as a ghost or phantom vehicle simultaneously with a present vehicle of a player.
A simulated vehicle system, comprising: a simulated vehicle configured to traverse a simulated course; a data structure holding a plurality of course finish times; a present course buffer configured to store a present course path of the simulated vehicle and a course finish time of the simulated vehicle as it traverses the simulated course; a recorded course storage configured to store a recorded course path; and a playback adjuster configured to adjust the speed of playback of the recorded course path when a course finish time in the data structure which corresponds to the recorded course path is different than a selected one of the course finish times which is based on an adjusting ratio. Research By: Rachel Johns Edited By: Andrew F. Thomas
U.S. Patent No. 5,718,632: Recording medium, method of loading games program code means, and games machine
Issued February 17, 1998, to Namco Ltd.
In 1995, Yoichi Hayashi of Namco Ltd. invented a variant of a technique called “Invade-a-Load” which was used in software for the Commodore 64 computer. Namco’s invention was for use with optical disc-based platforms such as the Sony PlayStation. The patent expired on November 27, 2015.
Namco’s patent covered “auxiliary games” that a user can play while the main game is loading. Sony released the PlayStation in 1994. The console had advanced graphics for the time, which it could do by replacing the previous generation’s gaming cartridges with CD-ROMS. However, the PlayStation needed to initialize a game by loading the game data from the disc into the console's memory. The loading process could take several minutes depending on the size of the game, and players would be forced to watch a load screen. Any gamer can tell you that load screens are very dull, especially compared to the instant gratification of cartridge games. The '632 Patent solves this problem by creating a technique for a player to play a smaller game during the load screen. Namco utilized the '632 Patent by allowing Ridge Racer players to play the classic game Galaxian during the load screens. It took no time for the console to load Galaxian, therefore, playing the game would not inhibit the console's ability to load Ridge Racer. Namco made playing Galaxian more than just a distraction since Ridge Race would reward the player with in-game bonuses if he/she could beat Galaxian before the load finished.
A recording medium, a method of loading games program code, and a games machine is provided. The recording medium has a program code relating to an auxiliary game and a program code relating to a main game. The size of the auxiliary game program code is small compared to the size of the main-game program code, and the relationship between the auxiliary game program code and the main-game program code is such that the auxiliary game program code is loaded first, before the main game program code. Unnecessary wastage of time can be prevented by first loading the smaller, auxiliary game program code into the games machine, before the main-game program code is loaded, then loading the main-game program code while the auxiliary game is running.
1. A recording medium, comprising:
computer readable auxiliary program code means for processing an auxiliary game; and
computer readable main-game program code means for processing a main game, wherein a size of said auxiliary program code means is smaller compared to a size of said main-game program code means and wherein a relationship between said auxiliary program code means and said main-game program code means is such that said auxiliary program code means is always loaded first, before said main-game program code means. Research By: Rachel Johns Edited By: Andrew F. Thomas
United States District Court for the Eastern District of Texas
Docket No. 2-18-cv-00284, filed July 10, 2018
On July 10, 2018, Infernal Technology and Terminal Reality (Infernal) filed a lawsuit in the Eastern District of Texas alleging that Crytek GmbH (Crytek) infringed upon U.S. Patent Nos. 6,362,822 (the '822 Patent) and 7,061,488 (the '488 Patent). The two patents relate to lighting and shadowing methods in computer graphic simulations.
Image from the '822 Patent, Fig. 2.
Claim 1 of the '822 Patent reads:
A shadow rendering method for use in a computer system, the method comprising the steps of:
providing observer data of a simulated multi-dimensional scene;
providing lighting data associated with a plurality of simulated light sources arranged to illuminate said scene, said lighting data including light image data;
for each of said plurality of light sources, comparing at least a portion of said observer data with at least a portion of said light data to determine if a modeled point within storing at least a portion of said light image data associated with said point and said light source in a light accumulation buffer; and then
combining at least a portion of said light accumulation buffer with said observer data; and
displaying resulting image data to a computer screen. ('822 patent, col 12, lines 4-21).
Infernal claims that Crytek's utilization of video game engine "CryEngine" allegedly infringes the asserted patents. According to the Complaint, Crytek used the allegedly infringing game engine to develop the Crysis series, Warface, Ryse: Son of Rome, The Climb, and Robinson: The Journey.
Typically, the next step for a defendant in this situation is to petition the Patent Trial and Appeal Board (PTAB) for an Inter Partes Review (IPR), but the '822 and '488 Patents have already survived an IPR because of earlier litigation. In 2015, Infernal sued Electronic Arts for patent infringement. EA responded by petitioning the PTAB for an IPR; however, the PTAB found the '822 and '488 Patents to be "Not Unpatentable." EA settled the lawsuit after the PTAB's decision. Crytek can still petition for an IPR of the asserted patents, but will likely have to use different prior art that the art used by EA or provide a good reason why the Board got it wrong the first time around.
If this seems like deja vu that is because Infernal filed complaints similar to the Crytek Complaint against Microsoft in April and against Activision Blizzard in May. To read our blog post on the Microsoft case click here. We will continue to monitor all three of these cases and provide updates when possible.
Bethesda Softworks LLC v. Behaviour Interactive, Inc., et al
United States District Court for the District of Maryland
Docket No. 8:18-cv-01846-RWT, filed June 21, 2018
On June 21, 2018, Bethesda Softworks filed a complaint in the District of Maryland against Behaviour Interactive and Warner Bros. alleging their Westworld mobile game infringes Bethesda's copyrights in Fallout Shelter. According to the Complaint, Behaviour used Bethesda's copyrighted source code from Fallout Shelter to develop a Westworld mobile game for Warner Bros., which, they allege, not so coincidentally ended up being suspiciously similar to Fallout Shelter. The Complaint also alleges that Behaviour breached a non-disclosure agreement and misappropriated trade secrets in doing so.
According to the Complaint, in 2014 Bethesda hired Behaviour to help develop Fallout Shelter. The Complaint states that Behviour assigned all rights in Fallout Shelter to Bethesda. Then in 2018, Warner Bros. hired Behaviour to develop a game similar to Fallout Shelter but based on Westworld. Warner Bros. released the Westworld game on June 20, 2018. Bethesda notice some similarities, and subsequently filed this lawsuit.
To prove copyright infringement, a plaintiff must show the defendant had access to the copyrighted work, and that there is a substantial similarity between the two works. Behaviour likely had access to Fallout Shelter's source code from when it developed the game for Bethesda. However, even access can be inferred if the similarities between two works are so similar that there is no reasonable explanation for the similarities except that one is a copy of the other. Proving substantial similarity for source code can be tricky because separating the non-protectable ideas from protectable expression is difficult. Most courts use the "Abstraction-Filtration-Comparison" test to filter out non-protectable ideas from both works, which can leave a plaintiff with thin copyright protection. Here, Bethesda bases its claim that Behaviour copied the source code on the fact that the Westworld game has the same "bugs" or "glitches" that Fallout Shelter had at release. The presence of the same bugs in alleged infringing software has been used in the past to prove infringement. It will be interesting to see if the Court agrees with Bethesda's point of view.
While the primary focus of Bethesda's Complaint is the source code, Bethesda is also claiming that Behaviour copied the artistic style and gameplay elements of Fallout Shelter. The biggest obstacle for Bethesda with these claims will likely be showing that Behaviour copied protectable expression and not just ideas or a scènes à faire of a game or genre. Even when the Complaint compares the artistic or gameplay features of the two games it does so to establish that those features were a result of the copied source code.
PUBG Corp., the Korean Subsidiary of Bluehole Studios (the developer of PlayerUnknown's Battlegrounds), has dropped its lawsuit against Fortnite developer Epic Games Inc. PUBG had filed a copyright infringement claim against Epic in South Korea back in January. According to reports, PUBG alleged that Epic had copied PlayerUnknown's assets and user interface. You can read our coverage here. However, on Monday, PUBG sent a letter of withdrawal to Epic's lawyers and the South Korean case was closed. Neither side has stated a reason for the withdrawal. PUBG's lawsuit against Netease Inc. is still ongoing, and we will continue to provide updates when available.
It is worth noting that Tencent Holdings Ltd., a Chinese social media/gaming company, is a part-owner in both Bluehole Studios and Epic - each to the tune of hundreds of millions of dollars - and might not want its investments suing each other. Also, PlayerUnknown's currently runs on Epic's Unreal Engine 4, which could also play a part in the settlement. We may never known the exact reason PUBG withdrew, but the cross-over between the two sides could have been a significant factor. As of right now, this appears to be the end of the legal conflict between PUBG and Epic.
United States District Court for the Northern District of California
CAND-3-17-cv-06223, Filed Oct. 27, 2017
We recently reported on Epic Games suing individuals for cheating in Fortnite. You can read about those cases here, here, here, here, here, here, and here. Recently the Northern District of California declined to grant a motion for default judgment against one of the defendants, Konstantin Vladimirovich Rak. In its complaint, Epic claimed that a YouTube video Mr. Rak had posted violated its exclusive right of public performance. Epic filed for a default judgment after Mr. Rak failed to respond to any court motions. The Court denied the motion for default judgment on several grounds, one of which was the public performance claim was insufficient. The District Court's denial was noteworthy because, in its opinion, the Court questioned whether posting gameplay footage to YouTube constituted a public performance.
Epic contends that Mr. Rak publicly performed Fortnite when he posted to YouTube a video about how to hack the game. Under 17 USC 101, to publicly perform means to transmit or communicate a performance of a work to a substantial number of people. The same statute defines a performance of an audiovisual work as showing its images in any sequence. Even though video games are classified as audiovisual works, there are not many cases explaining what constitutes a public performance of a video game. Epic cites Valve Corp. v. Sierra Entertainment, Inc., F. Supp. 2d 1091 (W.D. Wash. 2004) to support its claim of public performance. The NDCA did not find this citation helpful because the Valve case was primarily a contract dispute, which briefly discussed what constitutes a public performance of a video game.
The District Court also discussed Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996), a case briefly discussed in Valve. Allen involved people playing board games in a tournament. The Ninth Circuit held that "playing" is different than "performing," therefore there was no public performance. However, Allen involved board games, not video games. In Red Baron-Franklin Park, Inc. v. Taito Corp., 888 F.2d 275 (4th Cir. 1989), the Fourth Circuit held a video game arcade publicly performed Double Dragon because the game images were being reproduced. For many, this would seem to indicate that playing a game would be a performance because playing requires the reproduction of game images. Neither Epic nor the NDCA mentioned the Red Baron-Franklin Park case. It could be possible the NDCA agrees with this thinking, but it did reiterate the Allen Court's hesitation on granting copyright owners the power to "control when and where purchasers of games may play the game." Ultimately, the NDCA declined to decide the issue because the motion was only for a default judgment and neither side fully briefed the issue. The Court also warned Epic that the sole citation of Valve was not enough to establish a public performance.
The primary focus of Epic's lawsuits is to prevent hackers from cheating in Fortnite. Epic asked the Court for a default judgment because Mr. Rak did not respond. The goal of the public performance claim was to remove a video by Mr. Rak showing others how to hack Fortnite. The Northern District of California felt that Epic had not done enough to establish a public performance claim, but in the Court's analysis, it questioned what it means to preform a video game. The denial order does not change any current laws, but it does indicate the Court's willingness to address the issue of gamers posting videos on YouTube. The Court's interest in the topic may be the result of how popular "Let's Play" videos and streams have become. It will probably be awhile before there is an actual ruling, but Epic has a chance to amend its complaint, so it will be interesting to see Epic's response to the Court's public performance analysis. We will continue to follow this case and provide updates when available.
If you've ever been to Queen Mary's excellent More than Just a Game events, you have probably heard of the new Interactive Entertainment Law Review journal launched by Profs. Dimita, Mimler, and Festinger. This new peer-reviewed journal offers analysis of legal issues arising from interactive entertainment, video games, virtual/augmented/mixed realities, social media, and all related and emergent forms of digital interactive entertainment. Ross and I serve as members of the Editorial Board, along with many others who are well-known in the video game legal community.
The first issue went live just the other day and we are very happy to report that it includes our new article on copyright issues raised by game input streaming and replays, titled "The Key to Key Presses: eSports Game Input Streaming and Copyright Protection." In the article, Kirk and I explore whether and how copyright protection applies to recorded game inputs (e.g. mouse clicks and key presses in replay files), and who owns the copyright in recorded game play. Here's the full abstract:
The eSports industry has exploded, in no small part due to the ease with which exciting matches may be watched. Many modern video games stream game user inputs to viewers, rather than bandwidth-intensive video. These game input streams can be used by the viewers’ game clients to perfectly reproduce a match in real-time. In World Chess U.S. v. Chessgames Services, a U.S. District Court held that allegedly pilfered chess game moves, as facts, were neither subject to copyright protection nor eligible for ‘hot news’ misappropriation. But might video game input streams (as facts, per the World Chess court) nonetheless be eligible for copyright protection to the extent that the input data corresponds to a copyright-eligible game performance? After all, input streams are significantly more granular and exacting than mere chess game moves: they capture millisecond-by-millisecond input and effectuate perfect reproducibility of gameplay, rather than a mere description thereof. This article explores the copyright issues under U.S. law presented by live streaming of video game inputs and proposes that video game input streams are, to the extent that they are usable to perfectly generate a faithful recreation of a gameplay performance, copyright-eligible and owned by the player of the game.
While these base-line rights are usually overruled by developer EULAs, the question of copyright ownership in replays may be particularly important in disputes between third party leagues. In the past year, we've seen hints of this issue beginning to flare up in the form of the ESL/Valve/Twitch controversy back in January. Allowing third party leagues to exercise copyright over their tournament game play (through agreement with the players) may foster further growth in the eSports community.
United States District Court for the District of Delaware,
1-18-cv-00836, filed 06/04/2018
On June 4, 2018, Groove Digital filed a lawsuit in the District Court of Delaware alleging King.com infringed upon U.S. Pat. No. 9,454,762 (the '762 Patent), titled "System and Method for Delivery of Content to a Network Device." Groove Digital claims the '762 Patent relates to push notifications for mobile apps. In the Complaint, King's game, Candy Crush Saga, infringes upon the '762 Patent.
Claim 1 of the '762 Patent reads:
A system for delivering information to a networked device of a user, the system comprising:
a microprocessor running a software application for delivering an applet application to the networked device and managing the delivery of the applet application to the networked device, wherein the applet application passively deploys one or more applets at a time of deployment,
wherein the applet application provides for delivery of content to the networked device and a display of the content in a predetermined portion of a user display that is less than an entire display of the networked device, by the one or more applet, wherein the one or more applet is configured to deploy at least one of independent of or in conjunction with an internet browser window, wherein an internet browser is configured to deploy subsequent to deployment of the one or more applets based on at least one action or inaction of the user, wherein at least one of the applets is configured to become idle upon deployment of the internet browser, and wherein the deployment of the one or more applets is such that at the time of deployment of the one or more applets the user can continue to operate the networked device in a state prior to the deployment of the one or more applets;
a first database coupled to the microprocessor and storing a first set of information relating to the user; and
a second database coupled to the microprocessor and including a second set of information for comparison to the first set of information,
wherein the microprocessor compares the first set of information to the second set of information to determine whether the content should be transmitted to the networked device for display by the one or more applets. ('762 patent, col. 14, lines 9-43).
The '762 Patent has an interesting prosecution history. Samuel Gaidemak and Paul Chacko filed the '762 Patent on March 17, 2006, but the USPTO did not issue the patent until September 27, 2016. During those ten years, the PTO issued eleven office actions against the '762 Patent. On average a patent will face three or four office actions. The more office actions a patent faces, the more prosecution history estoppel the patent acquires, which is used to narrow the patent's claims and restrict the owner's use of the doctrine of equivalents. Groove Digital is asserting the doctrine of equivalents in addition to allegations of literal infringement. King has not yet filed an Answer in response to the Complaint.
Groove Digital is also suing United Bank for infringing the '762 Patent. Normally, we do not report on non-video game related case, but this is the only other lawsuit in which the '762 Patent is asserted. Groove Digital filed the lawsuit against United Bank on December 1, 2017, in the Eastern District of Virginia. The Complaint in that lawsuit alleges that United Bank's mobile banking app infringes the '762 Patent by using push notifications, and the Complaint filed against United Bank is very similar to the Complaint filed against King. United Bank has only filed a motion to dismiss for lack of jurisdiction. These lawsuits against United Bank and King could be the start of Groove Digital suing every mobile app developer that uses push notifications, so it will be interesting to see if Apple takes notice (in view of the integrated push notification technology built into iOS).
We will continue to follow Groove Digital's lawsuit against King and provide updates when available.
Call me old school, but Halo 2 is still my favorite multiplayer first-person shooter. It was the most balanced FPS game I've ever played, and I still get excited with each new release. The Halo franchise is one of those franchises that makes it in my top 10 list for all time best games (what are the other 9? Well, there's the Myst franchise (including Obduction), but I'm otherwise still working on it).
Microsoft released a teaser video for Halo Infinite today, and it looks awesome. This will probably give me the push I needed to upgrade from my Xbox One to the newer Xbox One X. It wouldn't be the first time I've bought new hardware just to play a new game (Quake and America's Army also did that trick).