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Activision Fights Back in Guitar Hero Patent Suit

Jennifer LeClaire, newsfactor.com Thu Mar 13, 5:00 PM ET

Guitar Hero just made its way into the Guinness Book of World Records: Gamer's Edition 2008, but Gibson Guitar would seemingly rather see its developer in court. Claiming its innocence and looking for exoneration, Activision is welcoming the showdown in a patent dispute that has gamers tuned in. ADVERTISEMENT

The drama began when Gibson Guitar filed a patent claim against Activision in January, alleging that its Guitar Hero franchise violates a 1999 patent Gibson had filed for technology to simulate a musical performance.

The suit struck the wrong chord with Activision. The company is now suing Gibson, saying its game doesn't infringe on the patent. Activision filed suit in U.S. District Court in Los Angeles on Tuesday. The video-game maker has asked the court to officially declare that the game does not infringe on Gibson's patents.

Gibson: Stop Playing Our Tune

Gibson's patent shows a method for simulating a live performance using a musical instrument, a 3-D headset with stereo speakers, and a prerecorded concert. Gibson's claim seeks damages in the form of license payments for using the technology, or an injunction against future sales of Guitar Hero games.

Gibson claims Activision is taking advantage of Gibson's patented technology without properly compensating the guitar company by continuing to sell Guitar Hero game software or instrument controllers. Activision took exception to the allegations and made its case known to the court.

"Despite being aware of the Guitar Hero game for many years, Gibson has encouraged Activision to manufacture and sell devices it now alleges infringe" the patent, the lawsuit said. By waiting three years to file a claim against it, Activision said the guitarmaker granted an implied license. Activision already licenses the rights to model its controllers on Gibson guitar models and to use their likenesses in the game.

Game Winner: Activision

Activision has the better argument, according to Michael Pachter, an attorney and research analyst at Wedbush Morgan Securities. U.S. civil law, he explained, generally requires a plaintiff to demonstrate that damages are insufficient and that irreparable harm would be suffered in the event an injunction is not granted.

"Gibson's request for damages as an alternative to an injunction reflects its view that damages would be an appropriate remedy, so we don't think an injunction against future sales of Guitar Hero games is at all likely," Pachter said.

Although he has not reviewed the patent itself, Pachter said the description sounds very different from the technology used to create the Guitar Hero controllers. What's more, Pachter said the date of the patent implies that Gibson could not have identified technology for simulating a live performance using a PS3, Xbox 360 or Wii. Those gaming platforms didn't exist in 1999.

Pachter agrees that Gibson's claim isn't timely, especially given Gibson's failure to raise its claim over the last three years, while Activision detrimentally relied upon its silence as assent. "It would be like watching your neighbor build his house on a foot of your property and waiting until the construction was completed to tell him he had violated your property rights," Pachter said. "It's too late."

Under the doctrine of collateral estoppel, Pachter believes Gibson's claim would be barred in court, unless it could somehow successfully assert that it only recently learned of the infringement. Given the preexisting licensing arrangement between Gibson and Activision, he believes that assertion is implausible.