Teachers' Union Debating Ending Homework For Students

Activision Sues Gibson In Response To Claims That 'Guitar Hero' Violates Patent

from the it's-all-fun-and-games-until-someone-digs-up-a-patent dept

Thu, Mar 13th 2008 12:26am — Mike Masnick

And now bogus patent threats are finding their way into the video game world, as Activision has filed for a declaratory judgment that it doesn't infringe on a patent owned by Gibson, the well-known guitar company. It appears that Gibson owns a patent on "generating and controlling a simulated musical concert." Reading through the patent, it appears to be quite different than Activision's game. First off, the patent seems to clearly indicate that the instrument in question is a guitar, not the faux guitar used in "Guitar Hero." Also, the patent really does seem to be about participating in a virtual concert by adding the guitar part, rather than about pushing buttons in a game. Finally, the patent also includes the small detail that the participating in the virtual concert also involves a "head-mounted 3D display." I'm not aware of too many people playing "Guitar Hero" with one of those. Either way, Gibson approached Activision about licensing the patent, and rather than finding itself involved in a patent lawsuit in East Texas, Activision took charge and filed a suit against Gibson proactively, looking for a declaratory judgment that "Guitar Hero" does not violate the patent in question. In the meantime, if Gibson is really so concerned, why not do a deal with Activision to get them to offer replicas of Gibson's classic guitars as an upsell offering for the game's fans?

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Filed Under: guitar hero, patents, virtual guitar
Companies: activision, gibson

22 Comments

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Anonymous Coward, 13 Mar 2008 @ 1:55am

Will it ever end??? The fools at Gibson need to find something better to do with their spare time rather than playing with their *pedals*
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Anonymous Coward, 13 Mar 2008 @ 2:47am

why not do a deal with Activision to get them to offer replicas of Gibson's classic guitars as an upsell offering for the game's fans? Because most real guitar fans/players can't stand that ridiculously lame game and don't understand what the hype is about. "Oooh, look at me, I can play fake guitar!".

I heard air-guitar competitions are quite funny.
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Jake, 13 Mar 2008 @ 3:31am

Suing Out Of Pique?
I was only a kid at the time so my memory's spotty, but I remember something a lot like Gibson's patent being around back in the early 90s, minus the HUD; it was demonstrated on TV with a motion-sensitive peripheral that looked like a plectrum, which was pretty clever, but it must have cost a fortune. There might have been a full-sized electric guitar offered for it too, but I'd be surprised if that even made it into production; you could probably get a cheap electric and amp for the same kind of money back then, and it wouldn't have been much harder to learn to play from what I remember. The software got some good reviews, but the hardware wasn't there yet and it never really caught on.

So fast-forward to the present and Activision come up with something slightly similar, albeit simplified to the point where it's DDR with fewer fitness benefits [Full Disclosure: I don't have a PlayStation and can only go by the reviews here], and it's rather more successful thanks to developments in consumer electronics. Might someone on Activision's design team have played this game, or at least known of it, and found themselves wondering if it could be made to work on a modern system? I'd say it's an odds-on bet.
So Activision shakes the dust off an old idea that didn't work, fixes a great deal of what was wrong with it and makes some money out of it. And now I can only assume that someone found the patent certificate whilst clearing out the obsolete archives and thought, "Hey! We thought of something a bit like this fifteen years ago and it bombed, but now Activision are doing something similar and raking it in! Foul! We deserve a percentage!"

Now, I could kind of see where Gibson were coming from if this was just about the replica-guitar controller; the Guitar Hero one doesn't look like it uses very similar operating principles to what I saw on TV all those years ago, let alone the Gibson patent, but my imagination just about stretches to Activision being just slightly over the threshold for a technical violation. But "Generating and controlling a simulated musical concert" is a hell of a broad concept to patent; take that out of context and you could use Kraftwerk, Vangelis and Jean Michel Jarre for prior art! I'm not impressed by the way Gibson went about this either; threatening to take someone to court unless they pay up sounds rather a lot like blackmail or demanding money with menaces to me, and if Gibson were so sure of themselves then they should have requested a declaratory judgement for themselves.
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Xanius, 13 Mar 2008 @ 4:14am

Re:
Ah the great argument of "You still can't play real guitar idiot."

Very few people that are good at guitar hero think they can play real guitar. In fact if you're good at guitar go play guitar hero, they are worlds apart, it looks simple to play since it's only a few buttons and a switch that need to be pressed...but it's not as easy as it looks when you try it on the higher difficulties.

The two take different types of skills,guitar takes hand eye coordination and practice to be able to bend your hand to reach the right notes.
Guitar hero takes hand eye coordination and reflexes.

You bash the game but either you have never tried playing it or you did and you were terrible at it so obviously it sucks and is stupid.
I'm horrible at both guitar hero and guitar and I recognize the difficulty in both and the fact that I don't have the time to learn to do either of them well.

As for the story, I think it's a good move on activisions part.
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C-HEN, 13 Mar 2008 @ 5:10am

It's also a little strange seeing how Gibson has pretty much been authorizing their name brand guitars in the game, and thier guitar models for the controllers for the last few years since Guitar Hero has been out. They obviously authorized or bought into getting their name into these games. How is it that all of a sudden Gibson is like, "hold up...what's this thing you're using our Gibson named guitars for?" as if they were unaware of what it was being used for. It's just a little shady that they would wait that long for the success of Guitar Hero to explode, then try to collect royalties on it, or even more moronically, try to shut it down.
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Mikey, 13 Mar 2008 @ 5:11am

Activision vs. Gibson
I'm wondering if the problem is not the companies, but rather the overall legal environment we are all in today. It seems that if a company does *not* exercise due diligence by filing immediate lawsuits at the first hint of a violation, they stand to lose something -- sometimes a little, sometimes a lot -- later on in the courtroom. And of course, if it's a public company then you will have the stockholders to contend with as well - THEY will be suing you for mega-damages, even if there are no "real" damages.

I'm hoping that this foolishness settles down at some point, because it is such a colossal waste of time and resource, not to mention the hard feelings generated.
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Killer_Tofu (profile), 13 Mar 2008 @ 5:35am

Gibson and Activision
I like the Guitar Hero games.
I also now have no respect for Gibson what so ever.
I do not really ever plan to try to learn to play a real guitar. Would take too much time the way I see it.
But, if I did, I can guarentee you it would never ever be a Gibson now.
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Vincent Clement, 13 Mar 2008 @ 5:45am

Re: Activision vs. Gibson
It will never settle down so long as patent trolls like NTP win over $600 million. And now you have private equity firms investing in or creating patent hoarding companies. If anything, it is going to get worse.
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Dirk Belligerent, 13 Mar 2008 @ 7:51am

Snobs = Suck
Most people wouldn't run around shrieking at gamers who play Madden, "You couldn't quarterback a pro football team!"; tell Forza players, "You can't race a real car!"; chastise WoW players about the lack of real spell-casting skills; or scold shooter players, "You'd die in a real war cuz there's no health packs!"; yet they have no compunctions about sneering at Guitar Hero/Rock Band players that they're "stoopid" because they aren't playing real instruments.
Here's a news flash, Sparky: a LOT of musicians, REAL musicians, play and love the GH/RB games. They understand the differences between "real" and "pretend" and are cool with it. Oddly, some excellent real musicians are totally mediocre at these games because they're used to playing ahead or behind of the beat and the games require precise adherence to the grid.
I'm a songwriter-singer-guitarist who can sing and play some rather complicated parts at the same time and I'm toast at anything above Medium difficulty while kids with no musical training can clobber the games on Expert and clog YouTube with the proof.
I wonder what, ahem, shortcomings these haters are attempting to compensate for? Granted, I've also encountered musicians who think GH is the most retarded thing ever, but they're unhappy losers who have bitterness issues beyond some video game's influence.

The bottom line is that if people are having fun, what's your problem, Francis? It's interesting to see starter guitar kits being stocked at Beast Buy and Target? Could it be that some of the 14 million buyers of Guitar Hero games have decided to give the real thing a shot?
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Duodave, 13 Mar 2008 @ 8:27am

Vague
I just read Gibson's patent and I find it differs from Activision's product in several important ways.

First, the patent specifies a 3-d head-worn immersive video & audio device. As of yet, no version of GH has utilized such a device.

Second, Activision's product does not include any video or audio device, it utilizes existing products by other companies.

Third, the Gibson patent specifies a guitar. Activision's product is shaped remotely like a guitar, but is in actuality a game controller. It has buttons, no strings or pickups. No one would ever mistake a GH controller for a guitar.
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Stephen, 13 Mar 2008 @ 8:34am

As an attorney who sometimes litigates patent infringement matters, it seems to me that we owe a slap on the head to the US Patent and Trademark Office which has in recent years gotten into the nasty habit of granting ridiculously vague and overly broad patents which tend to muddy the waters for businesses trying to innovate. A patent is a state-created monopoly and should be granted very cautiously.
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angry dude, 13 Mar 2008 @ 9:40am

Re:
Hey, dude

A patent is NOT a monopoly, just a right to exclude.

And USPTO stopped issuing friovolous patents a few years ago.
Try to get frivolous patent today. Tough luck.

And you are NOT a patent attorney, just a techdirt punk
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Nick (profile), 13 Mar 2008 @ 9:41am

Gibson has a long history of trolling. They buy smaller, struggling musical instrument companies, horde their patents, and kill off what made the company great either by firing all of the founders or ceasing development and production altogether. Here lies the graveyard of companies Gibson "acquired": Opcode Systems (midi sequencing software, Oberheim Synths, Tannoy Speakers. Some think they are anti-technology, so they acquire these companies to stifle music technologies that do not promote guitars. Gibson clearly sees Guitar Hero as the wet dream Gibson should have had, something they think they should have had the exclusive right to have thought of and executed on, but they could have never succeeded, so they are going to try to take as much away from Activision as they can. Making guitars is just a small part of their "business." I hate them.
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Stephen, 13 Mar 2008 @ 10:25am

Hey dumbass, you want my bar number? In fact, I wrote my law review note many years ago arguing that patents are state-created monopolies -- "rights to exclude" and should not be allowed to impede innovation vertically. What do you think a monopoly is if not an ability -- a "right" or otherwise -- to exclude?
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Matt, 13 Mar 2008 @ 11:00am

A GOOD REASON TO BUY A FENDER
Well, that and they are way better than that Gibson junk.

I don't get it--- So they decide to pay Activision so that they use ONLY Gibson guitars in the game, model their controllers after gibson bodies, and have all sorts of Gibson guitars in the game's 'store.'

Then they decide that they need to try to extort money out of Activision by offering to "license the technology" (read: threaten to sue them and force a settlement)?

Seems like they had a pretty sweetheart deal going for themselves, a lot of positive publicity and public exposure - why risk it? They aren't in any financial duress- musical instrument sales are quite strong.
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Nick (profile), 13 Mar 2008 @ 11:12am

Re: A GOOD REASON TO BUY A FENDER
Ha, you see? Even when you enter into what seems a reasonable deal with Gibson, they come after you later in a predatory manor. Classic Gibson strategy. Let this be a warring to all companies considering doing business with Gibson. Hell, even Guitar Center was considering dropping them a couple of years ago over some dispute, a move that would hurt Gibson far more than it would hurt GC. Don't be surprised with Gibson enters into a hostile takeover bid of Activision later this year. My advice to Activision is to drop all Gibson trademark deals as soon as possible and go all-Fender.
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DanC, 13 Mar 2008 @ 12:03pm

Re: Re:
Yeah....about that....

Linked List Patent

Issued April 11, 2006.

The concept's only been around for over 50 years.

Reality: 1, angry dude: 0
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Ed H., 13 Mar 2008 @ 12:52pm

Gibson's Patent Claims
I am not a lawyer, but I do know a little about patents. The important part of the patent is the list of claims. If you infringe on just one of the claims, you infringe on the patent. The most important claims are the independent ones, i.e. the ones that don't start with "The method in claim 25 wherein..." The other claims are all refinements of the independent claims, and can still provide protection of the independent claim turns out to be invalidated because it's too broad.

So, looking at the independent claims...

Claim #1 requires a musical instrument with an audio output signal. The Guitar Hero controller does not do that, so that one's out.

Claim #13 is broad enough that it could almost cover Guitar Hero, except the way it's written, it requires prerecorded video of a musical performance, and I don't think you could consider the GH game video to be prerecorded.

Claim #21 is really specific about a guitar, pre-recorded concert video, etc., so that's out. #25 and #28 also require pre-recorded concert video.

So on that basis, I don't think Gibson has a case.
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Anonymous Coward, 14 Mar 2008 @ 9:47am

I'm confused. All the in game guitars to choose from in Guitar Hero are Gibsons. I figured they had an advertising deal with Activision.
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Nick (profile), 15 Mar 2008 @ 11:51am

Re: advertising deal with Activision
No, it is licensing. Gibson licensed the Gibson guitar likeness to Activision. Quite the opposite.
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Nick (profile), 15 Mar 2008 @ 11:55am

Kotaku suggests that Gibson patented the idea back in 1998 when it saw the a similar game in Japan arcades, GuitarFreaks by Konami, and then waited 9 years until the concept caught such a critical mass with Activision being the big winner to now plunder its fortunes.
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Michael Sherrin (profile), 21 Mar 2008 @ 7:18am

Another lawsuit
Apparently Gibson decided Activision doesn't have deep enough pockets. They're suing Wal-Mart, Amazon, GameStop, Kmart, Target and Toys 'R Us simply for selling the game.

http://www.dailygame.net/news/archives/007413.php
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