Beware the Patent Troll
Patent trolling is a revenue stream for companies who come up with a vague idea, patent it, and "sue the hell" out of anyone who uses it
Rubin, who incidentally is the father of Naughty Dog co-founder Jason Rubin, got into game litigation through his son's business. A well-accomplished practitioner of law, he worked in the Antitrust Division of the Department of Justice, was professor of law at the University of Florida as well as a partner at a national law firm where he specialized in antitrust and IP cases, all before starting his own law firm.
Rubin feels that it's time for game developers and publishers to get together and use their leverage to defeat overly broad patents that take advantage of the U.S. patent system.
His GDC session will take place Wednesday, March 22 from noon to 1 p.m.
With so many patents out there, how can game companies avoid infringing on any one of them?
That's the big question. The courts have opened up the gates to these method patents that allow companies to come in and basically patent gameplay. The Crazy Taxi case is one that I talk about. [Sega sued Fox, Radical and EA in 2003 for uncanny gameplay similarities between Crazy Taxi and Radical's The Simpsons Road Rage.] Recently, Nintendo got a patent for what it calls a "Sanity System" for videogames, which is basically a patent that monitors players responses to various harsh conditions. Depending on the response, the intended software will decide whether the individual is more or less stressed, and will adjust the level of gameplay to reflect the stress felt by gamers.
The Sanity System is as rudimentary of thought as you could come up with. How do you avoid these kind of patents? It's very difficult. In the American Video Graphics case with the 3D spherical panning method patent, you have what you call patent trolling, where the owner of the patent isn't practicing the patent. The AVG patent is an old patent that's been out for a number of years — no one's really conscious of it — and it's fundamental to what goes on in a game. It's impossible for a developer to avoid that kind of patent. Essentially, one option for developers have is simply to say, "No, I'm not going to pay you the toll that you want. Sue me."
Of course, this is very difficult for developers to do given the cost of that. Publishers have done that, though. They've said it ["Sue me"] to AVG, they've said it to Sega in the Crazy Taxi case, and they'll probably say it to Nintendo when Nintendo starts suing people for designing games with varying difficulties of gameplay based on feedback. I think that Nintendo's patent has existed for many years in some form or another.
What happens to developers and publishers that tread upon these method patent lawsuits, though, is that it ends up costing them $50,000 or $100,000 a month in legal fees, and they say, this is nuts. Why don't I just pay a hundred or a couple hundred thousand dollars — Atari's $300,000 to AVG is probably a million or two to a company the size of EA — and get out of it, and be done with it.
The problem then is, in Atari and AVG's spherical panning case, or in the Crazy Taxi case, which also settled, is that these patents continue to exist; they haven't been defeated. They haven't really been tested by the judicial process. That's why these suits have mainly been at the publisher level. In the Crazy Taxi case, Sega sued Radical games, which was the developer of The Simpsons Road Rage, so that was a developer. But, AVG sued all these publishers, but it easily could have sued the developers as well. Maybe that's the next round, after settling with all these publishers. I hope there is something in the settlement agreement to prevent that.
So what can you do about that? There isn't much you can do really to escape the patent. You should be aware of it, and that's one of the things I say in the GDC presentation. This notion that ignorance is bliss, and if you don't know about a patent you can't be blamed for infringement, is not true. Ignorance is no defense whatsoever. If you had the capability to research patents, or maybe if the industry would do more, maybe IGDA, in terms of bringing these patents to surface so that people know about them, it would be possible to at least anticipate them.
It would also be possible to come up with an alternate routine so that you're not sued for infringement. Or, if you knew it was unavoidable, you could make the choice to license the technology up front for a reasonable price, rather than at the back end in front of the gun of a patent lawsuit. Or, get a lawyer and an industry group to take a look at this particular patent, the AVG patent is a perfect example of this, and see whether the patent is really valid. The fact that it's issued by the Patent Office makes it perceptively valid, but not irrefutably.
In the AVG case, before these guys settled, if the defendants would've mounted a huge effort in coordination with the IGDA IP Rights Committee to see if they could find the same technology in use before the claimed invention date, they might have been able to throw out the AVG patent. I was hoping that — given the number of defendants — the expense wouldn't have been so great on any one of them, that they would've stood up to this patent and knocked it out.
Do you think that those kind of vague, far-reaching patents are fair?
No, I don't. "Fair" is a loaded term, but I don't think this is the intended use of the patent system. The patent system is meant to encourage true invention. What we're getting now with these method patents, is people are coming up with a description of a process that they haven't really developed, but rather just thought about; they're mostly self-evident thoughts. Then, the patent says that anyone that achieves the same result, even if they attack it in a different way, is infringing upon this particular methodology.
I think that is too great of a monopoly, for too little of an invention. That system has gone a little nuts in how far it's willing to go to say that something is inventive.
Do you anticipate more and more of these types of lawsuits in the years ahead?
Well, there are two kinds of lawsuits, and the one that I'm sure we're going to see more of is the Crazy Taxi kind of lawsuit, which is a Nintendo-, Sega- or Sony-level patent-holder guarding the integrity of its games against someone coming in and copying the game. I think that's what really burned Sega, that they had a decent game franchise going with Crazi Taxi, and then Simpsons Road Rage came in, used the same kind of meandering car chase using very popular characters, and sucked the oxygen out of Crazy Taxi. Sega said, "We have a monopoly on this, let's go for it." I think those are going to continue.
The patent troll kind of lawsuit, the AVG kind of suit, I'm less certain of. The issue with those suits is that as long as companies like AVG win, we're going to see those suits. The AVG result, as I see it, is a firm acquiring a patent for the sole purpose of getting license fees out of it. They weren't going to practice it. They wanted to extract revenues from it. They bought it at price A, and they hope to make profit B from it. They had the money to buy the patent, and they had the money to buy the law firm to litigate. That's their business model.
If the publishers had stood up to AVG, and tried to fight the patent and prove that it's invalid, I think in the future, we'd see far less litigation. Had they even made a stand at knocking out the patent, I think we'd see some chilling to this. But, if you look at the docket in the AVG case, what you find is there's some preliminary skirmishing on procedural matters like discovery. That is, plaintiffs spend a couple hundred grand easy on trying to find out what games the defendants make, how they make the games and similar confidential information that the publishers have. Then before the patent is really put to a hearing on its validity, the parties work to a settlement.
The settlement that AVG got, if Atari gave them $300,000, and Atari is a weak sister in this market nowadays, AVG got at least $10 million in settlement. It could be $20 million.
Say I'm a programmer at a game company, and I have an idea for something as rudimentary as a "Sanity System". Say I leave the company, I go out, patent it, find investors who are willing to support the litigation, and I start suing the hell out of whomever I can find that has a game calibrated to player responses to particular situations, and hope to shake out a $10 or $20 million payday from the parties I'm suing.
If defendants keep on rolling over, I think you're going to see more lawsuits like this. |
