War games - Philips v Nintendo

In the first to be decided of cases brought in the UK, Germany, France and the US, the English court has decided that a pair of Philips patents relating to a handheld pointing device are valid and infringed by Nintendo's Wii system.

This is a detailed decision bringing in many legal points. Computer related inventions remain a difficult area in patent law. But here the questions tackled by the judge also involved a series of patent law questions; particularly around the identification of the skilled person for the purposes of claim construction and obviousness, amending claims and double patenting, and infringement by supplying a means relating to an essential element of an invention.

The three patents in the case dealt with aspects of controlling a game with movements and gestures.

The first patent (484) dealt with controlling an avatar using gestures. At the heart of this patent was technology that used pre-stored sequences of body motions to replace exact reproduction of user movements. Philips said, and the judge agreed, that Nintendo's Island Cycling game using a Wii with a Balance Board would infringe this patent, by translating a user's erratic variable motion into a steady motion. It would also infringe by modulating the user's viewpoint.

But other games available at the relevant time (the mid 1990s) had similar features. The judge decided that although none of the earlier games would be within the claims of the 484 patent and so destroy novelty, one of them, World Class Track Meet (played on the Nintendo Entertainment System) was close enough to make the patent obvious and so invalid.

The second and third patents in the case (498 and 650) were based on the same priority document. These concerned a user interface system based on a hand held pointing device. The pointing device had two key features: a camera and a physical motion sensor. The device could be used to give hand waving gesture commands to a fixed unit. Philips alleged that these patents covered the Wii Tennis and Okami games.

For these patents the relevant date for assessment of the state of technical knowledge was later (2002). Various earlier patent applications were identified by Nintendo as prior art. The judge decided that although these undermined several of the broader claims in the 498 and 650 patents, none of them included both of the key features.

Nintendo's Wii console and the Wii remote did infringe valid claims.

Given the number of detailed points in issue and the business interests at stake, it seems very likely that this case will go further. Nintendo is reportedly already planning an appeal.

Philips has said that it has tried to agree licensing terms with Nintendo since 2011, without success.

Given the invalidation of one whole patent, and of several claims in the others, Philips may also wish to take the case further.

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