Nintendo Wii Accused Of Willfully Infringing Patent That Was Applied For After Wii Was Introduced

from the wii-need-an-independent-invention-defense dept

Tue, Sep 13th 2011 11:54am — Zachary Knight

Techcrunch is reporting on yet another patent dispute over the technology found in Nintendo's Wii video game system. This time the company suing is ThinkOptics, the makers of the Wavit Remote.

The dispute is over the following patents:

7,796,116: Electronic equipment for handheld vision based absolute pointing system
7,852,317: Handheld Device for Handheld Vision Based Absolute Pointing System
7,864,159; Handheld Vision Based Absolute Pointing System.

Notice a trend yet?

What is probably not surprising is that this patent dispute is being filed in the patent troll haven of East Texas. Along with Nintendo, ThinkOptics is suing Nyko, a maker of third party Wii Remotes, Gamestop and Radio Shack, both of whom sell the Wii and accessories, and finally JC Penny, for being over priced and of low quality, I guess. Not sure why other retail outlets aren't being sued.

ThinkOptics' primary argument for how Nintendo willfully infringed on their patents is that Nintendo's own patent applications were rejected.

The rejection of [...] applications — assigned to Nintendo Co. Ltd. — based on the ’116 patent is proof that the Nintendo defendants knew or should have known of the objective risk that one or more of their products infringed at least one claim of at least the ’116 Patent.

The dates involved are what makes this suit interesting. Of the three patents behind the dispute two were granted in 2010 and one is 2011. All three, however, were applied for in July of 2005, two months after Nintendo first introduced the Wii to the public at the 2005 E3 conference.

With these dates in mind, how could Nintendo possibly have known they were infringing on a patent when that patent was not even applied for prior to the first public announcement of the technology? What this situation shows is the need for an independent invention defense in the patent system. Here we have two companies developing similar technologies at the same time. There was no public information from either company prior to the patent filing to indicate that someone else was making this technology. Why should one of these companies be punished for treble damage for not finding information that was unavailable at the time of development?

It will be interesting to see what comes of this lawsuit. It will also be interesting to see how many more companies will sue over the Wii.

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Filed Under: patent, wii
Companies: nintendo, thinkoptics

87 Comments

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Anonymous Coward, 13 Sep 2011 @ 12:06pm

Wouldn't Nintendo get protection by showing that the other patents are invalid due to prior art?
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Anonymous Coward, 13 Sep 2011 @ 12:07pm

Maybe
I should patent written language?
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Anonymous Coward, 13 Sep 2011 @ 12:15pm

Re:
Why does Nintendo need show other patents when Wii it-self is prior art?
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Franey, 13 Sep 2011 @ 12:18pm

IANAL (also not American), but am I right in thinking that under US patent law as it stands, prior art can only invalidate a patent if it was made public at least 12 months before the patent's application date? And isn't this one of the things the patent reform bill is supposed to change? (Presumably not retrospectively, so Nintendo could be boned.)
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The eejit (profile), 13 Sep 2011 @ 12:24pm

Re:
Even so, that means that the system has been gamed by some fuckwit.
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Anonymous Coward, 13 Sep 2011 @ 12:40pm

Realistically, there is no way that the Wii actually copied these patents (blatantly infringed). If you have a working article months before another patent was filed, there is no way that you used the patent to develop your tech. They wouldn't have even known about the patent for another year or so after the filing date as the patent office doesn't publish the applications immediately.
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Anonymous Coward, 13 Sep 2011 @ 12:54pm

"What this situation shows is the need for an independent invention defense in the patent system."

I cannot imagine for a second how you manage to draw this conclusion. Before someone applies for at patent, the field is open. When they apply, other companies that have prior art either should come forward, or be ready to fight legally if they think they are in the right.

Clearly, Nintendo introduced the product before the patent was applied for, so there is not much more to say. Either the patent doesn't apply to Nintendo's equipment and methods for operating, or the patent is invalid because of prior art.

No need to create some convoluted "independent invention" system, that would just add needless complications to hundreds of other situation and likely gridlock the patent system.

Oh wait, that is really what you are trying to propose. If you can't shut patent down by logic, you are pushing to create such complication as to make them meaningless. WTG MIKE!
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HothMonster, 13 Sep 2011 @ 12:57pm

Hmmm, so do you think I can submit a patent for a "patent submission and approval process" and sue the USPTO for infringement?

Someone sent me an email that the patent office has issued patent#8,000,000 and is making a big fuss about it. I was really hoping it was a process for thermally conditioning bread but it actually seems to be legit, I wonder how many the weeded through before they found one innovative enough to make a big deal about.
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freak (profile), 13 Sep 2011 @ 12:59pm

Re:
My understanding is that 'prior art' would involve a patent application. So unless nintendo also patented this, there would be no prior art.

It, uh, wouldn't be the first time a site . . . sorry, company or individual was sued for patent infringement for something they implemented well before the plaintiff applied for the patent.
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Andrew D. Todd, 13 Sep 2011 @ 1:01pm

Old Art From Another Field.
There is a long-established art of navigating ships, aircraft, and spacecraft. Nintendo's use of this art in the Wii-Mote controller was substantially conventional, drawing upon two techniques:

1) Inertial Guidance. Nintendo used an off-the-shelf, commercially available "gyroscope on a chip" device.

2) Celestial Navigation/ Pilotage by Light House, plotting the angles to a bank of infrared LEDs mounted on the console unit, and using a camera as a kind of sextant. This last is not novel-- plotting angles and dimensions from air photographs is an established tradition going back at least seventy or eighty years.

The combined usage of the two bodies of navigation art goes at least back to the space program. The astronaut Michael Collins, in his _Carrying the Fire_ describes using a combined system during the Apollo XI mission-- in 1969.

Nintendo's only potentially novel act was to use this system to locate a game controller, rather than a spacecraft. However, it is immediately obvious, under KSR v. Teleflex, to take a complete system doing a particular job in one use, and set it to doing that same job in another use.

Nintendo would not have been able to enforce patents successfully against a commercial rival, such as Apple, Sony, or Microsoft, if they had chosen to directly clone the Wii-Mote. The situation did not arise, because these companies simply rejected the idea of the Wii more or less outright.
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HothMonster, 13 Sep 2011 @ 1:02pm

Re:
"When they apply, other companies that have prior art either should come forward, or be ready to fight legally if they think they are in the right."

Thats why I read ever patent that gets submitted in case someone has something similar to my idea and keep a few million lying around to protect myself from patent trolls. If you don't have enough money to defend yourself from giant corporations why bother trying to new things?

Independent invention clause would be horrible, idc if someone didn't copy my work, if their idea is vaguely similar to mine and they are making more money than me I want to be able to sue their pants off and idfc if they don't have millions in reserve to defend themselves.
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HothMonster, 13 Sep 2011 @ 1:05pm

Re:
so by this logic I can rush to patent any "new" product right after its announced and then sue the person whose idea I stole since it won't qualify as prior art? Sounds reasonable and logical
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Anonymous Coward, 13 Sep 2011 @ 1:20pm

Headline and article is misleading
Headline and article is misleading. Provisional Patents were applied for on Jan 12, 2005 prior to the wii announcement.
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Robert Doyle (profile), 13 Sep 2011 @ 1:20pm

Why should the defendant even have to go to court
Something like this should just involve the judge summarily smacking the applicant and then turning them upside down, shaking them until their change falls out and then handing it to the defendant.

Just because you show you have a knack for abusing process doesn't mean you should be rewarded for it.

And remember... a hitman is about 5k... a lot less than a lawyer. Just saying.
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Anonymous Coward, 13 Sep 2011 @ 1:22pm

"I cannot imagine for a second how you manage to draw this conclusion. Before someone applies for at patent, the field is open. When they apply, other companies that have prior art either should come forward, or be ready to fight legally if they think they are in the right."

There is no way a system like that can work in practice. It is impossible to police all the patents that are being applied for to know which ones are a problem for you. Even for a small company with limited product, that's more than a full time job and you're not even assured that you'd catch everything that could be a problem.

Waiting to litigate is far from a preferred option. Just the threat of legal trouble can sink small businesses. Patent cases frequently go for 5+ years and it is very hard to prove a patent is invalid given the presumption of validity, regardless of how bad the patent is.
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Dark Helmet (profile), 13 Sep 2011 @ 1:23pm

Re:
"WTG MIKE!"

BZZZZT! Wrong writer, sparky....
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6, 13 Sep 2011 @ 1:26pm

Re:
They probably already did, but the display at E3 probably did not disclose all of the stuff in the claims.

If the Wii remote had been on sale at the E3 show then things might be different.
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6, 13 Sep 2011 @ 1:27pm

Re:
"ANAL (also not American), but am I right in thinking that under US patent law as it stands, prior art can only invalidate a patent if it was made public at least 12 months before the patent's application date?"

No you're not right in thinking that. Check out current 102(a) and (e).
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6, 13 Sep 2011 @ 1:28pm

Re: Re:
Not if you only describe it in the way they described it. If you magically know what is inside of a recently just disclosed device where they didn't tell you what was inside then yes, you may be able to do that. Especially if they don't offer to sell it to you.
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Franey, 13 Sep 2011 @ 1:30pm

Re:

Clearly, Nintendo introduced the product before the patent was applied for, so there is not much more to say. Either the patent doesn't apply to Nintendo's equipment and methods for operating, or the patent is invalid because of prior art.

Yeah, not so simple.

According to this, prior art only counts if it's (a) before the date of invention or (b) at least 12 months before the application date.

(b) is out, because Nintendo demo'd the Wii only two months before the patent was applied for.

So that leaves (a), and an argument over what the "date of invention" was, which again is a bit complicated.
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Anonymous Coward, 13 Sep 2011 @ 1:31pm

Re: Headline and article is misleading
If Mike actually researched these articles he'd avoid egg on his face like this. But, nope, not Mike. He never lets facts get in the way of his idiotic FUD spreading. The fact that he doesn't take basic efforts to get the facts right proves how slimy he really is.
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Franey, 13 Sep 2011 @ 1:34pm

Re: Re:
So, 12 months before application or any time before invention: correct?
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HothMonster, 13 Sep 2011 @ 1:35pm

Re: Re: Headline and article is misleading
"But, nope, not Mike."

well your right about that
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Dark Helmet (profile), 13 Sep 2011 @ 1:37pm

Re: Re: Re: Headline and article is misleading
To be fair, you can't actually expect this guy to read stuff he's commenting on, mmkay?
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Anonymous Coward, 13 Sep 2011 @ 1:37pm

Re: Re: Headline and article is misleading
Mike who?
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6, 13 Sep 2011 @ 1:38pm

So Zach, again we meet upon the field of your misunderstanding of the patent law and why it is setup the way it is. This situation clearly shows off one feature of the patent system. It encourages people to document, in a way understandable to those of ordinary skill, the technical parts inside of products.

Here, it appears Nintendo disclosed their Wii remote, but probably did not disclose the inner workings just yet (otherwise there will be prior art and there is no point to your whole paper), and likewise probably did not offer to sell it just yet. Other people in the field disclosed the inside workings of certain types of controllers and got a patent. Turns out, perhaps the inside workings they disclosed and claimed are the ones Nintendo used. Thus, they claim infringement.

Now, precisely how does Nintendo showing off their product at a trade show without disclosing how it works and the parts inside, make for a good reason to recind the standing offer our gov. presents to people to go ahead and make the disclosure in exchange for a patent? Nintendo had the device, it worked, they could have publicly disclosed it, or filed on patents secretly (which would later make good prior art) telling us all about the controllers. Apparently they chose not to. They're a big boy, they know the consequences of such actions.

There is no need to qq for Nintendo here.

"Headline and article is misleading. Provisional Patents were applied for on Jan 12, 2005 prior to the wii announcement.
"

Oh and look there, even more reason to believe they filed first.
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6, 13 Sep 2011 @ 1:40pm

Re: Old Art From Another Field.
"Nintendo's only potentially novel act was to use this system to locate a game controller, rather than a spacecraft. However, it is immediately obvious, under KSR v. Teleflex, to take a complete system doing a particular job in one use, and set it to doing that same job in another use."

O rly?
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Dark Helmet (profile), 13 Sep 2011 @ 1:40pm

Re:
Are you suggesting that it isn't enough to develop "Prior Art", but you have to apply and disclose it in a patent for it to count?
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drewmerc (profile), 13 Sep 2011 @ 1:41pm

can somebody tell me why nintendo don't have there own patents on the technology? surly they must have patented the tech in there own remotes before they released it
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The eejit (profile), 13 Sep 2011 @ 1:43pm

Re: Re: Headline and article is misleading
I chuckled. It was clearly one of the Tims that wrote this.[/sarc]
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Cowardly Anon, 13 Sep 2011 @ 1:46pm

Re:
I'm trying to understand what your argument here is...other than that Mike doesn't know anything. I think we can all see your opinion on that quite clearly.

You feel that Nintendo should have to pay millions in legal fees and time to prove that they did not infringe on this companies patents? Why should the company that successfully executed the idea have to pay for the burden of proof?

Perhaps Mike's suggestion of that clause isn't what's needed, but at least he's suggesting SOMETHING. If you don't agree that it's the right something, then offer a suggestion of your own.

Just sayin'....you'd be better received if you joined the conversation instead of personally attacking the person who has the balls to suggest something first.
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JMT (profile), 13 Sep 2011 @ 2:00pm

Re: Re: Headline and article is misleading
If AC actually read the byline he'd avoid egg on his face like this. But, nope, not AC. He never lets facts get in the way of his idiotic ad hom attacks. The fact that he doesn't take basic efforts to get the facts right proves how slimy he really is.
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Anonymous Coward, 13 Sep 2011 @ 2:02pm

So what you're saying...
Provisional Patents were applied for on Jan 12, 2005 prior to the wii announcement.

OK, so what you're saying is that a Nintendo employee was reading patent applications one day, spotted this one, said "this is great, let's build it!", wrote up a proposal, submitted it, at which point Nintendo stopped everything they were doing to devote all their resources into designing, prototyping, and building something that they *knew* infringed on a patent. (Which they would have had to do in order for it to be "willful")

Yeah, that sounds *really* likely.
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HothMonster, 13 Sep 2011 @ 2:02pm

Re:
so despite the fact that Nintendo had already made working controllers using these methods since these other guys applied first and never made any controllers Nintendo should have to pay them? Even though they clearly didn't infringe since they had working prototypes being demoed by the public before the patent was applied for, since these guys filed they get a cut of Nintendo's money. Sounds like a fair, just and unbroken system to me.
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Anonymous Coward, 13 Sep 2011 @ 2:09pm

The plaintiffs are probably trying to claim priority back to some prior-filed predecessor patent.

Reminds me of the Anascape lawsuit, where Microsoft settled before trial and Nintendo got hit with a big jury verdict.

http://www.patentarcade.com/2008/05/case-anascape-ltd-v-microsoft-et-al.html

If I recall, several of those patents were filed after the products came out, but claimed priority based on some earlier patent applications.
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Anonymous Coward, 13 Sep 2011 @ 2:23pm

Re: Re: Headline and article is misleading
I nominate this for "Ironic Stupidity of the Year."
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Andrew D. Todd, 13 Sep 2011 @ 3:37pm

Re: Re: Old Art From Another Field.
For example, Howard Rheingold, in his _Virtual Reality_ (1991), speaks of the necessity of determining the location of a dataglove, and briefly describes the system used in the Mattel PowerGlove, essentially a sonic version of Loran, with ultrasound transmitters mounted around a television set, and an ultrasound receiver mounted on the glove. Rheingold stresses that this was a cheap and expedient means of achieving a price point.
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Rikuo (profile), 13 Sep 2011 @ 3:42pm

Re: Re: Headline and article is misleading
That's funny, I thought it was some guy called Zachary who wrote this article.
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Rikuo (profile), 13 Sep 2011 @ 3:45pm

Re:
Someone files a piece of paper.
Nintendo has a working demo unit at a trade show.

Yup, patent law fails again. The guys who actually built the device are the ones getting punished here!
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Anonymous Coward, 13 Sep 2011 @ 3:49pm

ABOLISH IP!!!!!!!!!!
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E. Zachary Knight (profile), 13 Sep 2011 @ 3:50pm

Re: Re: Headline and article is misleading
Why hello there. This is "Not Mike" here. I did look into that angle, but 4 months prior to the Wii's announcement is still not enough time to determine if a product you have been developing for 2-4 years is infringing on un-granted patents.

That's the rub. Nintendo had been developing the Wii since at the latest 2003. That is two years before these people even applied for the provisional patent.

How is that infringement?
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E. Zachary Knight (profile), 13 Sep 2011 @ 3:55pm

Re:
I think the other guys covered this fairly well, but I will toss is a few comments.

Just because this is the status quo for patents in the US does not make it the most fair or best way to do things.

Here we have two companies making similar technology, both in secret. In the same year, one applies for a patent and the other shows off working product at a trade show.

6 years later, the one who filed the patent sues the one who showed off a working product.

They both developed their technology independently of each other. Neither had prior knowledge of the other. How can Nintendo willfully or even innocently infringe on the patent in this case?
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Anonymous Coward, 13 Sep 2011 @ 4:41pm

Re: Re: Re: Headline and article is misleading
You seem to assume that Nintendo needed to know of the allegedly-infringed patent when it began working on the Wii in order to willfully infringe the patent.

I'm not sure why you would think that's true.
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Anonymous Coward, 13 Sep 2011 @ 4:42pm

Re: So what you're saying...
Of course he's not saying that.

Are you high? Where in his post did he come even close to suggesting that?
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Anonymous Coward, 13 Sep 2011 @ 5:11pm

Re: Maybe
What are the new improvements you made to it that would allow you to file an extension?
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Jay (profile), 13 Sep 2011 @ 7:13pm

Re: Re: So what you're saying...
Then how is Nintendo supposed to know about the patent?
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E. Zachary Knight (profile), 13 Sep 2011 @ 7:25pm

Re: Re: Re: Re: Headline and article is misleading
Yeah... I am just going to leave that as is.
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Willton, 13 Sep 2011 @ 7:34pm

Re:
Realistically, there is no way that the Wii actually copied these patents (blatantly infringed). If you have a working article months before another patent was filed, there is no way that you used the patent to develop your tech. They wouldn't have even known about the patent for another year or so after the filing date as the patent office doesn't publish the applications immediately.

I don't see the plaintiff alleging this; the plaintiff is merely alleging that Nintendo willfully infringed its patent. Blatant copying is not a prerequisite to willful infringement.
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Willton, 13 Sep 2011 @ 7:36pm

Re: Re: Re: Old Art From Another Field.
For example, Howard Rheingold, in his _Virtual Reality_ (1991), speaks of the necessity of determining the location of a dataglove, and briefly describes the system used in the Mattel PowerGlove, essentially a sonic version of Loran, with ultrasound transmitters mounted around a television set, and an ultrasound receiver mounted on the glove. Rheingold stresses that this was a cheap and expedient means of achieving a price point.

That's a nice story, but I don't see how that is relevant to obviousness.
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The Groove Tiger (profile), 13 Sep 2011 @ 7:38pm

Re: Re: Headline and article is misleading
I imagine this troll just skims the comments without bothering about the article, finds the first one saying something like "article is misleading" (whether from one of his fellow tribe or not) or whatever, then writes a generic whiny post from his templates of "Mike IS FUD! Soylent Green is people!" and makes an ass of himself.
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Anonymous Coward, 13 Sep 2011 @ 7:48pm

Re: Re: Re: Headline and article is misleading
That's the rub. Nintendo had been developing the Wii since at the latest 2003. That is two years before these people even applied for the provisional patent.

How is that infringement?

Why is that relevant to infringement? How does any of this affect whether the Wii-Mote reads on the claims of the asserted patent? If every element of each asserted claim is embodied in the Wii, then too bad, so sad, Nintendo infringes. How long Nintendo has been working on the particular infringing device is of no moment to whether it infringes an issued patent.

Your better argument is that the patents are invalid, not that the Wii-Mote does not infringe. Basically, you want to say that because Nintendo had been working on its particular technology well before the plaintiffs filed, Nintendo's work is prior art and the plaintiffs should not be entitled to a patent.

But then, the Patent Act punishes those who conceal or suppress their technology from being publicly disclosed, as such concealment or suppression keeps the underlying technology from becoming prior art or being entitled to a patent. See 35 USC 102(g). So, the question is this: if Nintendo has been working on the Wii-Mote for that long, why did they wait to disclose their invention until the E3 show in 2005? Why conceal the technology until then?
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Willton, 13 Sep 2011 @ 7:49pm

Re: Re: Re: Re: Headline and article is misleading
Forgot to claim this post.
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Willton, 13 Sep 2011 @ 7:52pm

Re: Re: Re: So what you're saying...
Then how is Nintendo supposed to know about the patent?

Exactly how the plaintiff alleged: by having these patents cited against Nintendo's own patent applications.

Oh, you mean before Nintendo began developing its product? Why does that matter? Blatant copying is no prerequisite for infringement, not even willful infringement.
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Willton, 13 Sep 2011 @ 8:07pm

Re: Re:
Are you suggesting that it isn't enough to develop "Prior Art", but you have to apply and disclose it in a patent for it to count?

It does not have to be disclosed in a patent, but it must be disclosed publicly somewhere to count. The public does not benefit by Nintendo keeping their technology secret, and I see nothing from the E3 show explaining how their technology is made and used. The only thing the E3 show disclosed was that Nintendo has a shiny new object for people to buy.
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freak (profile), 13 Sep 2011 @ 8:51pm

Re:
Y'know, as much as I'm against IP, I still think that keeping some tiny amount of patents around would be better than none at all.

And yeah, yeah, we've had this argument before, and I've been unable to argue for patents at all. One of these days I'll have to dig into a big pile of research and do some thinking.
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E. Zachary Knight (profile), 13 Sep 2011 @ 9:07pm

Re: Re: Re: Re: Headline and article is misleading
If the purpose of ThinkOptic's lawsuit is to invalidate their very own patent by proving prior art on the part of Nintendo, then I guess you would have a point. It would be a bad move on ThinkOptic's part though.

However, they are claiming that Nintendo willfully infringed on patents that did not exist when Nintendo was developing their technology. How could Nintendo willfully infringe in this case?

Did they infringe? Maybe. Did they do so willingly? No. That is my point.

As for the patent act punishing those who do not disclose their technology, I am not sure what you mean. If by punishment you mean they do not get a monopoly if that technology is ever leaked, then I guess you are right. But many people create new technology and do not seek patents just as many people create art and release it to the public domain.
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E. Zachary Knight (profile), 13 Sep 2011 @ 9:09pm

Re: Re: Re: Re: So what you're saying...
How can they copy something that did not exist prior to development?

Look at the dates again. Both the final Wii product and ThinkOptic's patents were made public in the same year. Nintendo had their hardware finalized before ThinkOptic applied for the patent. Unless Nintendo had a mole inside ThinkOptic, there is no way they could have willfully infringed on the patent.
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E. Zachary Knight (profile), 13 Sep 2011 @ 9:12pm

Re: Re: Re:
While they did not get into the technical details, they did talk about the motion controls, the pointing ability and how the Wii Remote interacted with games.

But again, you ignore the fact that Nintendo developed their technology independently of ThinkOptics and prior to the application of ThinkOptic's patents.

How do they willfully infringe on a patent that did not exist at the time of development?
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Anonymous Coward, 13 Sep 2011 @ 9:44pm

Re: Re: Re:
The three patents disclose a plurality of devices and methods associated with remote controllers, and the plaintiff is alleging that all of the named parties, in one way of another (multiple remote control manufacturers, importers, domestic retailers) infringe one or more of the claims of each patent.

What seems to be overlooked by many here is that no one at this time knows just what products associated with the defendants are deemed to infringe. While I realize that under the FRCP notice pleading has been the longstanding rule, recent judicial decisions have opined that mere notice pleading is insufficient if a defendant is unable from the face of the complaint to identify which of its products are the subject of the suit.

In view of the above, it seems quite likely that a Motion to Dismiss the complaint will be filed, will likely be granted with the plaintiff being granted leave to amend, the amended complaint will ultimately be determined sufficient, and the defendants will then be put to the task of filing an answer and any counterclaims they may have.

One of the problems associated with both the article and many of the comments is the apparent assumption that whatever was the remote associated with the defendants is the very same remote now associated with each. Such an assumption is unwarranted at the moment since no one knows if what they had way back when is the same thing the have now. This is where an amended complaint will prove to be quite useful.
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Anonymous Coward, 13 Sep 2011 @ 9:48pm

Re: Re: Re: Re:
I am reluctant to draw any any conclusions at this point because it is unstated if what the defendants are using today are precisely the ones existing back in 2005. We all know products are in a constant state of flux, and last year's model may very well me materially different from this year's.
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Jay (profile), 13 Sep 2011 @ 10:52pm

Re: Re: Re: Re: So what you're saying...
"Exactly how the plaintiff alleged: by having these patents cited against Nintendo's own patent applications."

*facepalms*

Meanwhile, they are presumed to be valid, Think Optic decided to file first so they get proceeds from a product that actually went to market and executed successfully...

So the government should just hand over money to those poor starving ThinkOptic guys because Nintendo successfully launched their product while ThinkOptic merely thought about it...

Meanwhile, let's ignore the fact that Nintendo and ThinkOptical are in two different markets, cater to different customers, and could coexist without the threat of a patent pending lawsuit.

Yeah, this sounds like a GREAT way to promote innovation... Sue everyone through a vague patent. Bravo to Wavit for being so innovative that someone else could come up with similar technology, based on IR and engineering know how to make it run for a game console that TO had no hand in helping to make.
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Jay (profile), 13 Sep 2011 @ 10:53pm

Re: Re: Re: Re: Re:
In a mass produced manufactured console?

It doesn't change all that much.
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Jay (profile), 13 Sep 2011 @ 10:58pm

Re: Re:
freak, put simply...

Stephen Kinsella showed that when Sweden got rid of the patent system, innovation flourished.

Planet Money has the best write up on the problems of the patent system.

It may be better to remove the patent system entirely so that the patent trolls and leeches can find another bridge to scurry under.
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Anonymous Coward, 14 Sep 2011 @ 2:37am

Nintendo may have released infoo before E3
I remmber reading an article in Edge magazine all about the new Nintendo Wii, well before the the E3 launch show. the article had a long section on the remote controller and how innovative it would be.

I'll have to see if I still have the magazine and check the date.
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Willton, 14 Sep 2011 @ 9:11am

Re: Re: Re: Re: Re: Headline and article is misleading
If the purpose of ThinkOptic's lawsuit is to invalidate their very own patent by proving prior art on the part of Nintendo, then I guess you would have a point. It would be a bad move on ThinkOptic's part though.

That was not my point. I was trying to help you in your argument. You spilling a lot of ink regarding Nintendo's development of the Wii prior to ThinkOptic filing a patent application. That's only relevant to invalidity, not infringement or willful infringment.

However, they are claiming that Nintendo willfully infringed on patents that did not exist when Nintendo was developing their technology. How could Nintendo willfully infringe in this case?

Did they infringe? Maybe. Did they do so willingly? No. That is my point.

Well, your point has holes. Knowledge of a patent, or lack thereof, at the point of development certainly is relevant to willfulness. However, once Nintendo is made aware of a patent that its products arguably infringe, Nintendo has a duty to cease infringement. This can occur by stopping production of its Wii products or designing the products around the patent. However, if Nintendo disregarded this duty, for whatever reason, upon being notified of ThinkOptic's patent and continued producing its arguably infringing Wii products, such disregard opens Nintendo up to a charge of willful infringement.

That's the point: once Nintendo is made aware of a patent that it arguably infringes, Nintendo must stop infringing. Whether Nintendo had a fully developed product prior to being notified of the patent is irrelevant to willfulness. And as I've said earlier, blatant copying is not a prerequisite to willful infringement.
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Willton, 14 Sep 2011 @ 9:14am

Re: Re: Re: Re: Re: Headline and article is misleading
As for the patent act punishing those who do not disclose their technology, I am not sure what you mean. If by punishment you mean they do not get a monopoly if that technology is ever leaked, then I guess you are right. But many people create new technology and do not seek patents just as many people create art and release it to the public domain.

Which is fine, as that is their choice. Whether the creation of that art is considered "prior art," however, depends on when it was released or disclosed to the public. Nintendo would have a pretty good argument that its Wii products were prior art to ThinkOptic's patents if Nintendo had disclosed them to the public prior to ThinkOptic's filing dates. But I see no evidence that Nintendo did so.
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Willton, 14 Sep 2011 @ 9:19am

Re: Re: Re: Re: Re: So what you're saying...
How can they copy something that did not exist prior to development?

Look at the dates again. Both the final Wii product and ThinkOptic's patents were made public in the same year. Nintendo had their hardware finalized before ThinkOptic applied for the patent. Unless Nintendo had a mole inside ThinkOptic, there is no way they could have willfully infringed on the patent.

Why does that matter? Copying is not a prerequisite to willful infringement. As long as Nintendo knew of the patents in question at any time and still continued producing products that infringe the patent, that can be considered willful infringement.
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staff, 14 Sep 2011 @ 9:21am

another biased article
�Patent troll�

Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: �we�re using your invention and we�re not going to pay�. This is just dissembling by large infringers to kill any inventor support system. It is purely about legalizing theft.

Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don�t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.

For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.
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Willton, 14 Sep 2011 @ 9:21am

Re: Re: Re: Re: Re: So what you're saying...
If the patent is vague, it can be challenged as such. But that appears to be a nonsequitor here.
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Willton, 14 Sep 2011 @ 9:32am

Re: Re: Re: Re:
But again, you ignore the fact that Nintendo developed their technology independently of ThinkOptics and prior to the application of ThinkOptic's patents.

How do they willfully infringe on a patent that did not exist at the time of development?

By being notified of the patent and deciding to continue to infringe thereafter. As I have said repeatedly, copying is not a prerequisite to willful infringement. For whatever reason, you seem unable to grasp this.

Hypothetical: you decide to have a picnic on a piece of land which you honestly but mistakenly believe is a public park. The owner of the land later informs you that you are actually trespassing on his private property and demands that you leave. If you decide to stay on the land and continue your picnic, despite being notified that you are doing so on private property without permission, would you consider your conduct willful?
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Andrew D. Todd, 14 Sep 2011 @ 9:36am

What Is An Invention?
This is a fairly typical micro-electronics "invention." It isn't driven by actual systems invention. It is driven essentially by the falling price of chips. Things that the military could afford many years ago are now cheap enough that they can be incorporated into children's toys.

About thirty years ago, people were experimenting with "cheap guidance systems," so that they could be built into missiles costing "only" $100,000 (the more advanced and expensive varieties of Sidewinder missile), as opposed to the $20,000,000 of an Air Superiority Fighter such as the F-14 Tomcat or the F-15 Eagle. All the different possibilities were tried out, and such technologies gradually worked their way downwards. Inertial guidance chips, for example, went into automobile anti-skid braking systems. Before the car can steer with its brakes, it needs to know which way it is going. This market created an industry to produce such parts at consumer prices. Once Nintendo disclosed its intention to bring out a controller based on motion, the means of doing so were obvious to the kind of person who habitually reads electronics suppliers' catalogs. Nintendo built the Wii-Mote with off-the-shelf parts, subject to severe cost constraints. They used the two-dollar part, but they could not afford the ten-dollar part from the same manufacturer. That kind of thing.

I have a sort of indefinite memory of reading an article in Scientific American, sometime in the 1980's, about the concept of putting "devices" on a chip. I no longer have the copies, and cannot check my memory, but as I recall, the article dealt with the means of etching mechanical structures on a chip, and then suggested a series of devices. Apart from elementary devices such as pressure sensors, there was a discussion of how to make a gas chromatograph. The article also mentioned the beam balance, a weight on the end of a beam, which could be used to make an accelerometer. I don't recall whether the article raised the additional point that a pair of accelerometers make a differential accelerometer, measuring rotational acceleration, and thus a solid-state gyroscope. It would probably also be worthwhile to look at the journal Machine Design for that period. This was the kind of journal which one had to read in the engineering school library, unless one met the professional requirements for a subscription (*), but I made a few photocopies of articles which especially interested me.

(*) One of the enduring wonders of of the internet is that so much stuff is available for free, without having to prove that one is a potential customer for expensive equipment in the immediate future. You can download spec sheets for electronic parts without having to work for a consumer electronics firm.

What was truly novel about the Wii was not anything to do with invention as defined by the patent law-- it was the discovery of a market, a market of mature women who found routine calisthenics unbelievably dull, and wanted to play virtual tennis in their living rooms, and who did not feel the need to pretend that they were Serena Williams or whoever. Since they were concerned with essentials like ball movement, the program could be approximately on the same order as Pac-Man. Most of the game industry was so fixated on the teenage boy market that it could not comprehend the interests of people who did not live like teenage boys.
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E. Zachary Knight (profile), 14 Sep 2011 @ 10:22am

Re: Re: Re: Re: Re:
Ok. So At the point of being notified of potential infringement Nintendo has a couple options.

1) Pay some kind of licensing fee which is probably far more than any other option.

2) Continue on the course they have already set upon and fight the legal battle when it comes to it.

Only option 2 has and real benefit for Nintendo. Option 1 means admitting that ThinkOptics is the better company and paying out money to them for R&D work Nintendo did.

Option 2 means that they have a possibility of invalidating ThinkOptics patents and potentially being reimbursed for legal fees. Sure they may lose and end up being forced to go with Option 1, but at this point they are getting ready to launch a new console and will be able to work around it.

There is no option to remake their hardware. That would have been far more expensive than either of these options and there is no way Nintendo would have gone with it.
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Willton, 14 Sep 2011 @ 10:43am

Re: Re: Re: Re: Re: Re:
Only option 2 has and real benefit for Nintendo. Option 1 means admitting that ThinkOptics is the better company and paying out money to them for R&D work Nintendo did.

Perhaps, but it also likely means paying a smaller sum now instead of a potentially larger sum down the road. Prior to an infringement judgment, Nintendo has the leverage of uncertainty, as Nintendo may be deemed a non-infringer or the patent may be deemed invalid if the case goes on. After a final judgment of infringement, Nintendo loses that leverage.

Option 2 means that they have a possibility of invalidating ThinkOptics patents and potentially being reimbursed for legal fees. Sure they may lose and end up being forced to go with Option 1, but at this point they are getting ready to launch a new console and will be able to work around it.

Yes, there are potential rewards associated with Option 2. There are also great risks going with Option 2, as discussed above.

There is no option to remake their hardware. That would have been far more expensive than either of these options and there is no way Nintendo would have gone with it.

Pardon me for saying so, but I don't see how that's ThinkOptic's problem.
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Alex Macfie (profile), 14 Sep 2011 @ 11:46am

Prior art need not be in a patent
wrong, prior art can be anything that's been published, anywhere in the world, and in any language. It does not have to have been published in a patent.
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6, 14 Sep 2011 @ 11:52am

Re: Re: Re: Headline and article is misleading
Do you know what infringement is son?
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6, 14 Sep 2011 @ 11:57am

Re: Re: Re: Re: Re: Headline and article is misleading
"Did they do so willingly?"

Willingly and willfully are two different things son.

And no, the poster you're responding to does not think that ThickOptic's Lawlsuit is to invalidate their own patent. Their lawlsuit is to get $$$.
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6, 14 Sep 2011 @ 11:59am

Re: Re: Re: Re: Re: Headline and article is misleading
"As for the patent act punishing those who do not disclose their technology, I am not sure what you mean. "

By punishment he means that Nintendo can get sued like they are now, and lose, and then have to pay $$$. In short, if you're working on tech, and you neglect to file in the office on what you're doing, someone else might file on it and then collect royalties from you if you try to use that invention they filed.
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6, 14 Sep 2011 @ 12:06pm

Re: Re:
"Are you suggesting that it isn't enough to develop "Prior Art", but you have to apply and disclose it in a patent for it to count?
"

Not "apply and "disclose" it. You can "apply for a patent" OR otherwise disclose it for it to become prior art. You can also offer to sell something, and a year later whatever you offered to sell is prior art under 102b. And I'm not just "suggesting" that, I'm telling you that straight to your face. I'm "informing" you of that.

But don't qq for Nintendo, they knew and know all this.
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6, 14 Sep 2011 @ 12:08pm

Re: Re: Re: Re:
"How do they willfully infringe on a patent that did not exist at the time of development?"

They know of the existence of the patent, and they know there is a good chance for it to be a valid patent. If they go ahead and make controllers that infringe, that is kind of the definition of "willfull infringement". That's "how they willfully infringe on a patent that did not exist at the time of development". If you have an issue with it, take it up with the courts or congress, not us.
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6, 14 Sep 2011 @ 12:16pm

Re: Re: Re: Re: Re: Re:
Wow look at that, the boy comes close to becoming a man. Zach, you're close with your two options. There's a few details missing or added wrongfully in your answers but you get the jist.

There's always a fourth+ option in picnics and patents. For example, you might indicate that the life of the property owner's daughter (etc) may be in jeopardy and get him to back the f off. In this case, perhaps ThinkOptic had a product that Nintendo might have a patent on...
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6, 14 Sep 2011 @ 12:18pm

Re: Re:
Rikuo, while I perfectly well see your point here, that isn't the way the patent law is currently set up, and Nintendo is no spring chicken, they know how it works. There is no reason to qq for them not having disclosed or filed on their controllers sooner.
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6, 14 Sep 2011 @ 12:20pm

Re: Re:
"How can Nintendo willfully or even innocently infringe on the patent in this case?"

By making products that are claimed in the patent. That's kind of the definition of "infringement".
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6, 14 Sep 2011 @ 2:06pm

Re: Re: Re:
"So, 12 months before application or any time before invention: correct?"

Look dood, there are different portions of 35 USC 102 which can be used to determine if a given disclosure is "prior art".

A very very very basic breakdown that might appease your appetite for knowledge whilst also appeasing your reluctance to go look into it yourself goes like this.

102(a)- anything PUBLISHED by ANOTHER ENTITY (other than the inventor) prior to the EFFECTIVE filing date of the application (you can use foreign priority to get around this).

102(b)- anything published, offered to be sold, in public use, by ANYONE (including the inventor) ONE YEAR prior to the DOMESTIC FILING date (you can't use foreign priority to get around this).

102(e)- any PUBLISHED APPLICATION FOR US PATENT (or national stage/other stage of published WIPO patent apps filed in the US with some conditions) OR PATENT by ANOTHER ENTITY (other than the inventor) filed before the EFFECTIVE FILING DATE (you can use foreign priority to get around this kind of art).

That's a very basic breakdown. It's all very complicated and it will take you some time to understand if you look into the matter. If you're interested enough, then be my guest.

Those are the most used sections of 102. You'll probably need a lawlyer to understand when the rest of them apply or don't apply.
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Jay (profile), 14 Sep 2011 @ 5:09pm

Re: Re: Re: Re: Re: Re: Re:
" Prior to an infringement judgment, Nintendo has the leverage of uncertainty, as Nintendo may be deemed a non-infringer or the patent may be deemed invalid if the case goes on. After a final judgment of infringement, Nintendo loses that leverage."

Yes, but they also have the presumption of validity of the patent, which would be expensive before the trial date.
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Jay (profile), 14 Sep 2011 @ 5:16pm

Re: Re: Re: Re: Re: Re: So what you're saying...
I fail to see how taking one point and moving it around becomes a nonsequitor.
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Willton, 14 Sep 2011 @ 6:58pm

Re: Re: Re: Re: Re: Re: Re: Re:
Yes, but they also have the presumption of validity of the patent, which would be expensive before the trial date.

A presumption of validity is merely that: a presumption. It can be overcome, and in many cases it has been overcome, when the evidence is strong enough. Proving invalidity of a patent would be expensive with or without the presumption of validity.
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faceless (profile), 17 Sep 2011 @ 5:11am

a few things
1) The Wii Remote was in development since 2001

2) The Wii was shown at e3 2005, but the Wii Remote wasn't actually unveiled until the Tokyo Game Show 2005 in September of that year
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