Hi, and welcome back to Legal Geek. This week, we review an ongoing lawsuit between Niantic, the maker of Pokémon Go, and a patent owner who owns a geotagging patent, and what the potential damages could be for this popular phone game.
News broke a few weeks ago of Niantic exceeding $2 billion dollars in revenue from their hit software app Pokémon Go. Later this week, the Nintendo Switch will have the first classic-style Pokémon game come out for the system called Pokémon Let's Go Eevee and Pokémon Let's Go Pikachu, and these games are also configured to integrate with the phone app phenomenon. That could make Pokémon Go even more popular again. But all this financial success draws the risk of lawsuits, which is exactly what is happening in this Delaware case we cover today.
Blackbird Tech LLC is the owner of U.S. Patent No. 9,802,127 on a "Video game including user determined location information." The general gist of the claims in this Patent are to cover a computer game or method where GPS signals are used to read a first physical location of a user and then displaying images of the first physical location on a user's device along with virtual objects that are not physically present at the first physical location on the user's device. In other words, the game displays a map or current image of the user's surroundings and adds virtual elements to it. This set of claims was clearly tailored to target covering augmented reality games.
Blackbird's patent has an original filing date stemming back to 2011, and it issued in October last year. So in December, Blackbird sued Niantic and claimed Pokémon Go infringes the claims of this patent. Niantic decided to file a motion to dismiss claiming that the Patent was invalid under recent software patent rules stemming from a Supreme Court decision entitled Alice v CLS Bank.
The Alice decision makes software patents and business method patents invalid if they merely recite abstract ideas performed on generic computer equipment. This decision has led to a slew of patents being rejected or invalidated, as the abstract idea rules tend to be broadly applied. But here, the judge in a Delaware federal court ruled last week that Niantic oversimplified the claims of Blackbird's patent in arguing that they were covering just an abstract idea. The court noted that the system and method in the claims actually takes images of actual locations before integrating those images into the virtual video game environment, which is allegedly more than just an abstract idea. Seems like a close call to this patent attorney, but it was good enough to overcome a motion to dismiss.
The result is that the case will continue through the discovery process, unless the parties settle with one another. Niantic's attempt to swat this case away quickly has failed, and a long expensive fight in court will thus be ahead. Niantic may still prevail on a non-infringement or invalidity argument in the full trial, but it will take months of litigation work to determine those grounds.
If Niantic loses this case, remedies such as money damages or an injunction to shut down the game may occur. It is far more likely that money damages would be awarded, but that could still seriously impact the future development of the popular phone app. The stakes are huge, and that explains why both parties are willing to fight this out so far in court.
The Bottom Line is, in many fields like software, there are usually ongoing patent application families with relatively broad disclosures which can later become patents when they happen to cover later developments that become big money makers, like augmented reality games. It can be really hard to avoid these risks when you're a big success like Niantic, and it seems to be just an added cost of doing business under the current U.S. IP regime. We will keep our eyes on this case and provide updates when available, but in the meantime, enjoy catching those digital pocket monsters.
Also, RIP to Stan Lee, who was blessed to live long enough to see his stories become a major hit film franchise and inspiring to so many people in our community and beyond. Excelsior!
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