March 3, 2009
High from whiffing its own fumes of patent power, guitar maker Gibson threatened, and then sued, retailers selling Activision's Guitar Hero video game. Activision had the vision to activate a declaratory judgment action. Sizzling with the right riffs, the judge in the case late last week rocked Gibson's patent potential into the boneyard, as the patent only applies to analog output, the judge decided. "As a general observation, no reasonable person of ordinary skill in the relevant arts would interpret the '405 patent as covering interactive video games." Under Gibson's construction, Central California Judge Mariana Pfaelzer noted, the claims could apply to pressing a "button of a DVD remote... to a pencil tapping a table." Rock on.
Posted by Patent Hawk at March 3, 2009 4:07 PM | Litigation
As a guitar playing patent attorney, I studied this patent when the suit was filed. I'm a Gibson fan, and I don't play Guitar Hero. Unlike some, I don't blame Gibson for trying. But it was evident from the start that the claims of this application, to be valid, would have to be construed as limited to analog input. Otherwise, they would read on a person tweaking a control on a control surface (mixer) to a computer-based sequencer (pro tools). I posted my prediction elsewhere. This is the first time I have felt so prescient. I guess what surprises me is that the court got it right immediately, instead of doing something else weird and unnecessary. I guess I read too many appeals court decisions.
Posted by: tonesponge at March 5, 2009 8:59 AM