Hi, and welcome back to Legal Geek. This week, we turn back to our favorite geeky subjects after our usual summer Supreme Court sabbatical, with a review of a recent Court of Appeals decision confirming that a patent being used to sue World of Warcraft and League of Legends was invalid.
A patent holding company called Game and Tech sued Activision Blizzard and Riot Games for allegedly infringing their U.S. Patent 8,253,743. This patent covered customization of avatars used in online games, which obviously falls right into the wheelhouse of games like World of Warcraft and League of Legends. Game and Tech is a non-practicing patent holder, which is why some have labeled them a patent troll in this marketplace.
Nevertheless, whether you think the patent owner is a troll or not, Activision Blizzard has used their strong knowledge of fantasy and their own back catalogue of games to vanquish the alleged troll. Patents can be challenged as invalid over prior art available at the time the patent was filed, and this validity challenge can take place in the courts or in front of administrative judges at the Patent Office. In this case, Activision challenged the validity of this patent in the Patent Office and won that case a few months ago. Game and Tech appealed to the Federal Circuit Court of Appeals.
The arguments made by the patent owner were fairly flawed. One argument was that the Patent Office judges misinterpreted the scope of the claims, but as these administrative judges tend to be the best experts available on patent law and interpreting patents, this argument died quickly at the appeals court. The patent owner also argued that an obviousness rejection could not be made on only one reference, e.g., multiple references needed to be combined. The Federal Circuit bashed this argument as being wrong as a matter of law, but it was a moot point since the patent could be invalidated based on one reference or based on a combination of two references.
As a result, last month the Federal Circuit affirmed the judgment of the Patent Office Appeal Board, confirming the patent is invalid and not enforceable against the makers of WoW or League. More specifically, the court held that the Diablo II game manual described creating and customizing avatars for use in game and in online chat channels, or at least suggested the concepts claimed in the patent well enough to render them obvious. Obvious inventions are not entitled to patent rights, so this has caused the Game and Tech patent to be invalid.
The battle may continue between these parties, as Game and Tech has other patents which it seeks to enforce against the game company giants. But for now, if this truly is a patent troll, the Alliance and Horde have come together to bring a cataclysm onto this particular patent.
The Bottom Line is: worldwide success and high profit margins as seen by these makers of WoW and League are very good at attracting lawsuits from third parties, patent holders or otherwise, who want a piece of those profits. However, for this particular patent owner and non-practicing entity, the courts have declined to allow them to cut in on the profits from Azeroth. Unfortunately for the big companies, employing legal teams to defend against such challenges is just a cost of doing business, especially in the U.S. in the current era.
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