Updated: Nintendo Patent Infringement Suit Dismissed

Earlier this week, Judge Manuel Real summarily dismissed Guardian Media Technologies’ patent infringement claim against Nintendo. The suit alleged that Nintendo infringed their patents relating to V-chip content censoring technology. Nintendo’s prevailed by countering that while the Wii does have parental controls, Guardian’s patent was limited to movies and TV shows — things that Wii doesn’t offer. Guardian appears to be something of a patent troll — according to Business Week, they’ve sued “a slew” of tech companies after receiving the patents from the original inventor, but only two of the companies have settled. Nintendo was just one of around forty defendants Guardian sued for various patent infringement claims – the cases against thirty-eight other defendants remain ongoing.

UPDATE: In a statement, SVP and General Counsel for Nintendo of America Rick Flamm elaborated slightly. “Nintendo vigorously defends patent lawsuits … At the earliest stages of this case, Nintendo convinced the court to dismiss this case as Guardian’s patent had nothing to do with Nintendo’s products.” The case information, in case anyone is interested, is Guardian Media Technologies Ltd. v. Coby Electronics Corp., 08cv8439, U.S. District Court, Central District of California (Los Angeles).

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Nintendo Releases Annual Piracy Report, Pleads to Think of the Children

In its annual report to the Office of the U.S. Trade Representative, Nintendo again outlined the state of piracy in the world in regard to its hardware and software products. Countries that have made the piracy list this year include China (”the hub of production of counterfeit goods”), Mexico (”anti-piracy actions are… wholly inadequate”), Spain (”the availability of game-copying devices is alarming”) and Paraguay (”corruption continues to hamper anti-piracy efforts”). In addition to these countries, Nintendo also complimented the Republic of Korea for recent raids made against pirates in conjunction with the US.

Interestingly enough, Nintendo decided to utilize the old adage of protecting the children as a reason to prevent piracy. Jodi Daugherty, senior director of anti-piracy writes,

It is important for parents to note that if users of circumvention devices are children, they may be exposed to unsuitable content downloaded from the Internet and played on their Nintendo systems.

So there you have it folks. It’s not about the money, it’s about the unlicensed porno Wii games that might make it to your children!

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ESRB Under Fire For Animal Crossing Debacle

Recently, a racial epithet made its way into the speech of an Animal Crossing character. The epithet was user-created and only found in fourteen review copies of the game, all of which have been recalled and changed. Now people are pointing fingers at the ESRB and threatening to take action, saying that their ratings system is a failure for letting something like this slip through.

The ESRB warning on any game with online play clearly states that “Online Interactions Not Rated by the ESRB”. This is because online content can change a game at a moment’s notice, and the ESRB aren’t omnipresent. Further, this slur was found not in the retail version of the game, but in a very small number of pre-release copies. The issue was discovered and dealt with quickly and efficiently.

The ESRB could not have caught this, nor should they have. Every online content provider has an abuse notification system for cases just like this, and if the swift reprisal here is any indication, that system worked.

Finally, remember that the people who saw this “atrocity” were fourteen adults in the media – not impressionable kids. Only if players and parents take the responsibility for monitoring their own online experience can there be worldwide gaming that is open and available to the community at large.

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Nintendo USPTO Woes Again – Wii Remote Not Trademarkable

As if any 2nd year law student with an intro to IP class couldn’t see this coming. GamePolitics reports that the United States Patent and Trademark Office has suspended Nintendo’s application to trademark the term Wii Remote, claiming the word remote is too commonly used to be protected as a trademark. Nintendo can still proceed, but they must limit the scope of the mark to apply to “remote” only when used in conjunction with Wii. Thus, Wii Remote would be OK, but asserting infringement over use of the word remote alone would not. Thanks to GP for hosting the original letter suspending Nintendo’s application.

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Shortcuts: Thanksgiving edition

Today’s shortcuts brought to you by the letter J and the website Patent Arcade.

• THQ v. Activision, which we never actually had time to tell you about since it only popped up a week ago, has settled, with THQ dismissing the case with prejudice.
• Nintendo. Patent infringement. AGAIN. This one is Motiva v. Nintendo, over US Patent No. 7,292,151. It appears to be involving the Wiimote, or the sensor bar based on the claims in the ‘151 patent. For those of you interested in following up on PACER, it’s at Motiva, LLC v. Nintendo Co. Ltd. et al., docket 6:08-cv-429, filed Nov. 10, 2008, in the Eastern District of Texas (Tyler Division).

And last week, the USPTO granted the first trademark ever for an avatar in a virtual world. Ross Dannenberg has more:

Registration number 3,531,683 is for Computer programming services, namely, content creation for virtual worlds and three dimensional platforms. The interesting part, however, is the mark itself (pictured at left), which is an actual avatar in the virtual world of Second Life. The mark was registered on the Principal Register, meaning that the mark inherently has secondary meaning as a source of origin of goods and/or services (i.e., the mark is not generic or descriptive).

This is kind of a big deal. Also, this is my last post before VGXPO, so those of you going, I’ll see you there!

Oh and in other news, my Comment first draft is done! After thinking it over, I’m probably not going to post it here until after it gets edited and published, so hopefully by January it’ll be online. However, if you’re interested in seeing an early copy, let me know through the contact form, and I’ll see what I can do.

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Xbox 360 price drop undercuts Nintendo Wii

Kotaku is reporting that Microsoft plans to drop the lowest priced Xbox 360 SKU, the Arcade version, to $199, putting it cheaper (depending on market) than the Nintendo Wii. Most markets are selling the Wii at the $250 and $279 pricepoints, so having the significantly more powerful Xbox 360, which has a significantly larger library and more advanced online capabilities, is a serious threat to Nintendo.

I don’t know if we can bold this enough: This makes the Xbox 360 Arcade the cheapest of the current-gen systems. The other SKUs in the 360 line also get price drops, with the vanilla 360 and the Elite model at $299 and $399 respectively.

The threat this poses to Nintendo simply cannot be understated. When a consumer looks at getting a Wii or a 360, comparing them side-by-side, the only benefits that Nintendo’s console has are its motion sensing controller (something no longer unique to either the 360 or the PS3 anymore, though the Wii remote is obviously more advanced) and the library of Nintendo specific IPs. However, Microsoft wins hands down on size of game library, online games, graphical quality, ability to play DVD and advanced formats, interaction with home computers, and Xbox Live.

Simply put, the casual player will now have a strong reason choose the 360 over the Wii. Given that Nintendo began to develop a hardware dominance over the last six months of FY ‘07 (first six of calendar year ‘08), this puts that dominance in serious jeopardy.

The price drop also is mirrored in Japan, but that is not likely to make any real dents in Nintendo and Sony’s dominance, where the 360 is clearly (and likely permanently) a third place contender among the current-gen systems.

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Wiimote vs. The Loop? Nintendo sued for Patent Infringement Again

Yes. Again. Over a controller. But not over the Wavebird controller for N64 this time…. no it’s over the Wii Remote or “Wiimote” as Nintendo is currently being sued for trademark infringement over (by the owners of the Weemote).

But unlike the Wii/Wee-mote case, this is a patent infringement claim. According to Cnet, Hillcrest Labs “has filed a complaint for patent infringement with the U.S. International Trade Commission, as well as a separate patent infringement suit in a U.S. District Court in Maryland regarding Nintendo’s video game console.” We’ll carry more, including the complaint and attached exhibits, after the break:

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GamesLaw analyzes NPD July 07-08 Numbers

NPD’s console sale charts for July ‘07-’08 are now in beautiful graph form, and the results are interesting. We draw a few conclusions after the jump:

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