Joystiq http://www.joystiq.com Joystiq http://www.joystiq.com/media/feedlogo.gif Joystiq http://www.joystiq.com en-us Copyright 2008 Weblogs, Inc. The contents of this feed are available for non-commercial use only. Blogsmith http://www.blogsmith.com/Nintendo doesn't have exclusive rights to MotionPlushttp://www.joystiq.com/2008/08/08/nintendo-doesnt-have-exclusive-rights-to-motionplus/http://www.joystiq.com/2008/08/08/nintendo-doesnt-have-exclusive-rights-to-motionplus/http://www.joystiq.com/2008/08/08/nintendo-doesnt-have-exclusive-rights-to-motionplus/#commentsFiled under:


We're criminally forgetful around these parts, so usually refer to the Wiimote MotionPlus accessory as "that thing that makes the Wiimote work the way it should have in the first place." But as it turns out it may also someday be "that thing that makes the 360 controller or DualShock 3 work the way the Wiimote should have in the first place." InvenSense, the company behind the tech, says that Nintendo doesn't have the exclusive rights to it, and that other companies have expressed an interest. To be fair though, they don't name anyone specifically.

So, Nintendo, out of curiosity: You invest in an addition to your console's primary feature and you don't even lock up the rights? How about you dig through Miyamoto's office cushions and buy the exclusivity, the company and a gold-plated hover-castle for them to work in? What are you saving for?

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]]>invensensemotionplusnintendowiimotewiimotionplusJustin McElroy2008-08-08T13:15:00+00:00Law of the Game on Joystiq: Trademark infringement? Not like-wiihttp://www.joystiq.com/2008/08/04/law-of-the-game-on-joystiq-trademark-infringement-not-like-wii/http://www.joystiq.com/2008/08/04/law-of-the-game-on-joystiq-trademark-infringement-not-like-wii/http://www.joystiq.com/2008/08/04/law-of-the-game-on-joystiq-trademark-infringement-not-like-wii/#commentsFiled under:

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

GamePolitics recently posted a piece on Forbis, the makers of the weemote, and an issue that is all too familiar in Trademark law: trademark infringement. To summarize the GamePolitics piece, Forbis Technologies trademarked "weemote" in the year 2000 for a children's television remote. According to a Time piece on the weemote, sales have fallen considerably since the Nintendo Wii was released. The blog-o-sphere coined the term "Wiimote" soon after the Wii hardware was announced, and the term has stuck ever since. Nintendo, however, does not have a trademark on the term "wiimote," only on "wii."

Forbis is hoping to enter into a business arrangement by which it can re-brand its product and Nintendo can take control of "wiimote" and "weemote" (pronounced the same) because, as they put it, "the damage has been done here (whether intentional or not)." In fact, in cases of possible infringement between a significantly larger player and a smaller one such as this, a settlement of this nature would not be unusual. Even if Nintendo believes it would be successful in an infringement suit with Forbis, this may be the far cheaper option to resolve the issue. After all, the weemote brand had minimal value before the introduction of the Wiimote based on the company's self-described weak sales. Nintendo has thus far declined to purchase "weemote." But stopping at an out-of-court settlement wouldn't do much to illuminate the legal points that exist here, so let's take a look at this as if it were going to go to trial.

"'The damage has been done here,' says Forbis"
What Forbis is alleging, in general, is known as trademark dilution. Dilution, in short, is where the value and uniqueness of a trademark is lessened because of another party's use of a similar or identical mark. This is where things get complex, as "dilution" gets divided into "blurring" and "tarnishment." Tarnishment is something that harms the reputation of a trademark. Blurring, on the other hand, is by most accounts almost indistinguishable in analysis from the concept of a "likelihood of confusion" at common law and in many states.

There is a Federal Trademark Dilution Act (FTDA), which sets out a three part test for a Federal protection with regard to dilution. Under the FTDA, it must be proven that the initial mark is famous, that the second mark was adopted after the first one, and that the second mark blurs the strength and uniqueness of the first mark. I believe on a FTDA claim, the weemote would fail the first test. By the time the Wiimote was released, the weemote had not become famous and likely the term "weemote," when used in a survey of the public, would not be identified with any product.

In the Mead Data Central v. Toyota Motor Sales case, the court sets out a six part test for dilution by blurring that almost exactly mirrors many of the tests for confusion. The test is similar to what is used in many states (even though Mead is a federal case), and it has been applied for fact finding even in FTDA cases, like Ringling Bros. v. Utah Division of Travel Development. These factors are (quoting Mead):
  1. similarity of the marks
  2. similarity of the products covered by the marks
  3. sophistication of consumers
  4. predatory intent
  5. renown of the senior mark
  6. renown of the junior mark
These elements are considered as a whole in order to determine dilution by blurring. Looking to the facts in the "wee/wiimote" dispute, the case for blurring is not as strong as you might imagine. For the purpose of this analysis, just imagine that Nintendo did actually use the term "wiimote," and had a Wiimote logo that used the wii font. The first element, similarity, is limited more or less entirely to sound. The text is similar, but the stylized logos are quite different. Even granting similarity here, the remaining factors seem to fall flat. The products covered by the marks, while both being electronics that exist in the living room, look quite different and have very different functions and relative levels of technology. In fact, only the weemote DV, first available on Amazon December 2007, has the color white on it, while the Wiimote is available in white only. This simple color difference, in addition to different shapes, button layouts, design styles, and decades of technological differences, put these products in very different places. In fact, they would be on opposite ends of your local electronics store.

The sophistication of consumers is harder to judge on the weemote, and I'm sure the company would be able to speak better to this than I would. However, I imagine the market for the weemote is limited to parents of very young children who have some difficulty with the parental controls already built into their TVs, cable boxes, sattelite recievers, and TiVo units. Wii consumers, on the other hand, I would imagine are fairly sophisticated (yes, even grandma). They know exactly what they want and what it looks like. It is unlike a Wii purchaser would buy a weemote by mistake. Conversely, a weemote purchaser might pick up Wiimote by mistake, but even a short glance at the packaging would likely show them this is not the correct product.

"The internet has grown to the point where it can more or less create a term that becomes ubiquitous overnight"


The final three factors all have to do with the marks themselves. Predatory intent could speak to two different attitudes by the junior mark user, in this case Nintendo. First, it would be predatory to want to use the Wiimote to put the weemote out of business. I have seen no indication that this is the case. In the alternative, it may be predatory to try to use the weemote's populatiry to sell Wiimotes. Given that the company admits weak sales in the six years preceding the Wii's release, this also seems unlikely. The last two factors speak to the fame of each mark. Clearly, the weemote hasn't attracted much mainstream fame, while the Wiimote enjoys the fame and recognizability on top of the gaming world, and perhaps even comes close to the level that the iPod has reached.

There is an additional factor that can also be introduced: actual confusion. If there was evidence of consumers actually confusing the weemote and Wiimote, this would be evidence that could support dilution. The more frequent the confusion, the stronger the evidence.

Of course, all of this circumvents a threshhold issue: Nintendo doesn't call the Wii controller a Wiimote, nor does it have a trademark for "wiimote." In fact, it doesn't even seem that Nintendo came up with the term Wiimote. That alone seems to indicate a lack of predatory intent. But this is also, to some extent, the point Forbis is making. The internet has grown to the point where it can more or less create a term that becomes ubiquitous overnight, and that term may or may not be destroying the trademark of a business that's just trying to get started. Given that it is the responsibility of the trademark owner to police for possible infringement of its mark, many small businesses are faced with the nearly impossible task of policing the internet. And in the rare instance where the internet creates a term like "wiimote" that steamrolls an existing product, there isn't much the trademark owner can do.

Trademark laws, as they exist now, don't address issues such as this, and to my knowledge, the case law doesn't exist on a fact pattern like this. Really, there is a greater policy question as to if, or how, to even attempt to resolve these kind of issues. Should Forbis be entitled to protection because they came up with weemote first? Or should the fact that the brand didn't gain much, if any, traction in 6 years and the internet's adoption of the term "wiimote" be evidence to Forbis that it's time to re-evaluate its marketing strategy and brand? There is no easy answer to this question, and it's one that is likely to happen more frequently in today's internet-driven world.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

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]]>columnsforbisinfringementintellectual-propertylawlaw-of-the-gametrademarktrademark-disputetrademark-infringementweemotewiiwiimoteMark Methenitis2008-08-04T17:20:00+00:00Rumor: Nintendo exec hints at MotionPlus-infused Wiimoteshttp://www.joystiq.com/2008/07/19/rumor-nintendo-exec-hints-at-motionplus-infused-wiimotes/http://www.joystiq.com/2008/07/19/rumor-nintendo-exec-hints-at-motionplus-infused-wiimotes/http://www.joystiq.com/2008/07/19/rumor-nintendo-exec-hints-at-motionplus-infused-wiimotes/#commentsFiled under: ,


Though little is known about the Wii's recently unveiled peripheral, the MotionPlus attachment, other than the fact that it will allow you to throw virtual frisbees to virtual puppies with unparalleled accuracy, Nintendo Entertainment Analysis and Development director Katsuya Eguchi alluded to a new Wiimote model that would include the MotionPlus technology during an E3 developer roundtable.

In Eguchi's own words, Nintendo is "looking at whether or not it will be an attachment or built in," so a MotionPlus Wiimote is far from confirmed. Still, we certainly hope Nintendo never ceases production of the attachment altogether -- forcing a populous that scrambled to acquire the Wii's elusive controller last year to chase after a new Wiimote SKU could lead to an unforeseen, if not slightly ironic, revolution against the prosperous company.

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]]>e3-2008katsuyaeguchimotionplusnintendonintendowiirumorwiiWii-MotionPluswiimoteGriffin McElroy2008-07-19T20:30:00+00:00Get a Wii gun shell for only a few times its worthhttp://www.joystiq.com/2008/07/18/get-a-wii-gun-shell-for-only-a-few-times-its-worth/http://www.joystiq.com/2008/07/18/get-a-wii-gun-shell-for-only-a-few-times-its-worth/http://www.joystiq.com/2008/07/18/get-a-wii-gun-shell-for-only-a-few-times-its-worth/#commentsFiled under: ,

Want a Zapper-type gun shell for your Wiimote but don't want to overpay for what basically amounts to a handle? Well ... you're basically out of luck. But if you want to overpay somewhat less than the usual too-high price, Amazon.com is offering CTA Digital's Wii Magnum Gun, a Perfect Shot ripoff, for $8.99 as their Deal of the Day.

If you're concerned about the quality of this plastic gun shell versus other plastic gun shells, just remember: seriously, it's a piece of plastic, and probably does just as good a job of being that as any other piece of plastic. Don't think our dismissal of their complexity means we don't recommend a gun shell; anything that gets you playing Ghost Squad is a good thing.

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]]>cta-digitaldeal-of-the-daywii-magnum-gunwii-zapperwiimoteJC Fletcher2008-07-18T14:45:00+00:00Nintendo unveils Wii MotionPlus accessory for 'unmatched precision'http://www.joystiq.com/2008/07/14/nintendo-unveils-wii-motionplus-accessory-for-unmatched-precisi/http://www.joystiq.com/2008/07/14/nintendo-unveils-wii-motionplus-accessory-for-unmatched-precisi/http://www.joystiq.com/2008/07/14/nintendo-unveils-wii-motionplus-accessory-for-unmatched-precisi/#commentsFiled under:

Nintendo has announced via press release Wii MotionPlus, an accessory for the Wii remote that works with both the sensor bar and accelerometer to "allow for more comprehensive tracking of a player's arm position and orientation." No other details are provided at the moment, but more information is promised for Nintendo's press conferece tomorrow.

Fun fact: Here's the mass text message Nintendo sent out 2 the press:

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]]>breakingnewswii-motewii-motionpluswii-remotewiimoteRoss Miller2008-07-14T12:00:00+00:00EA Sports peripherals due in next year, bundledhttp://www.joystiq.com/2008/06/24/ea-sports-peripherals-due-in-next-year-bundled/http://www.joystiq.com/2008/06/24/ea-sports-peripherals-due-in-next-year-bundled/http://www.joystiq.com/2008/06/24/ea-sports-peripherals-due-in-next-year-bundled/#commentsFiled under: , ,

ea sports
EA Sports executive producer and VP David McCarthy has revealed that Moore's division plans to create and bundle peripherals with some of its sports games. "I think you'll see games using that Rock Band peripheral strategy from EA Sports, even within the next 12 months," McCarthy teased during his Paris GDC lecture, reports Gamasutra.

According to additional comments McCarthy made to Next-Gen, it would seem that EA Sports is specifically focused on developing plastic shells peripherals for Wii. "One of the things we're doing is looking at just playing with the Wii remote in a different way, using a whole new peripheral that's out there, kind of thing. So, basically enabling control for the user in a much different way," McCarthy said, adding, "we are prototyping stuff that really does allow us to play with the Wii remote differently." McCarthy promised that something would be shown to the public in the next few months, maybe as soon as E3.

Source - Gamasutra
Source - Next-Gen

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]]>ea-sportsparis-gdcperipheralswiimoteJames Ransom-Wiley2008-06-24T12:00:00+00:00Alone in the Dark with Wiimote and Nunchukhttp://www.joystiq.com/2008/06/13/alone-in-the-dark-with-wiimote-and-nunchuk/http://www.joystiq.com/2008/06/13/alone-in-the-dark-with-wiimote-and-nunchuk/http://www.joystiq.com/2008/06/13/alone-in-the-dark-with-wiimote-and-nunchuk/#commentsFiled under: ,

A fresh take on Waggletech(R) as Alone in the Dark for Wii developer, Hydravision Entertainment, proves its penchant for virtual charades in this new trailer. Seriously, the "flasher" maneuver? Brilliant! Who knew the Wiimote and Nunchuk could be used to mimic the parting of a trench coat? Still, there's nothing quite as immersifying as the overhand bludgeon. Classic.

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]]>alone-in-the-darkatarihydravision-entertainmentnunchukwiimoteJames Ransom-Wiley2008-06-13T15:00:00+00:00Rumor: 'PS3mote' controller spotted at focus testhttp://www.joystiq.com/2008/06/02/rumor-ps3mote-controller-spotted-at-focus-test/http://www.joystiq.com/2008/06/02/rumor-ps3mote-controller-spotted-at-focus-test/http://www.joystiq.com/2008/06/02/rumor-ps3mote-controller-spotted-at-focus-test/#commentsFiled under: , ,

According to unconfirmed (but "exclusive") information on PlayStation LifeStyle, you can toss another waggle wand prototype on the increasingly large pile of potentially non-existent peripherals. The information, supposedly obtained during a PlayStation 3 focus test held in exotic "****** ****, California," describes motion-sensitive PlayStation 3 controllers that operated via a "mini-tripod that stood about 12 inches high."

Several mini-games, including fencing, paintball and the obligatory tennis are said to have been played with the "incredibly responsive and accurate" devices. PlayStation Lifestyle's "proof" comes in the form of a January e-mail inviting PS3 owners to participate in a focus group "discussing PlayStation 3 games." PlayStation forum chatter does seem to indicate that some Underground members were invited to focus tests in Chicago and Los Angeles during that month, but it lends no credence to the rest of the story.

Naturally, Sony told us, "We don't comment on rumors or speculation."

[Image: Not the real thing.]

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]]>PS3PS3moteRumorSonyWiimoteLudwig Kietzmann2008-06-02T13:30:00+00:00'Count Castlevania' still not whipped up about Wiihttp://www.joystiq.com/2008/05/21/count-castlevania-still-not-whipped-up-about-wii/http://www.joystiq.com/2008/05/21/count-castlevania-still-not-whipped-up-about-wii/http://www.joystiq.com/2008/05/21/count-castlevania-still-not-whipped-up-about-wii/#commentsFiled under:


MTV's Multiplayer had a chance to speak with Castlevania series director Koji Igarashi at last week's Konami Gamer's Night and asked the eccentric icon a question that's been on our minds: what's up with the series on Wii? More specifically, is he still set against using the Wiimote for some one-to-one whip waggling?

Whip in hand - seriously - he told the Multiplayer crew that he feels "cracking" the Wiimote is "going to get tiring after a while" but that he has "been thinking about different ways" to make a Castlevania work on Wii and sees Nintendo's hit console as "a viable platform, the more and more [he thinks] about it."

We'll look forward to the day Igarashi figures out a way for us to "whip it good" on the Wii, instead of bringing waggle to Castlevania just for the sake of it.

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]]>castlevaniakoji-igarashikonamiwiimoteRandy Nelson2008-05-21T20:30:00+00:00Wiimote magician Johnny Lee on head tracking, Nintendo, and future videoshttp://www.joystiq.com/2008/04/30/wiimote-magician-johnny-lee-on-head-tracking-nintendo-and-futu/http://www.joystiq.com/2008/04/30/wiimote-magician-johnny-lee-on-head-tracking-nintendo-and-futu/http://www.joystiq.com/2008/04/30/wiimote-magician-johnny-lee-on-head-tracking-nintendo-and-futu/#commentsFiled under: ,


Johnny Lee is one of the most exciting innovators in the video game space right now; only thing is, Lee doesn't work in the video game space. He's a PhD candidate at Carnegie Mellon University (graduating this week, congrats!) and his projects have not only made their way around the entire internet, thanks to sites like YouTube, but it even landed Lee a spot presenting at the prestigious TED conference.

Our pals at Wii Fanboy caught up with Lee and picked his big brain on everything from head tracking getting pulled from Boom Blox ("it's actually a pretty complicated decision, and I don't know if I'm at liberty to explain exactly why"); Nintendo's reception of the technology ("I have been talking to some Wii game developers and they've said that ... if a game requires too much motion or requires ... too much movement on the player's part, Nintendo asks them to pull it."); and future projects ("Maybe next week or the week after that, I can push out another video."). Any guesses on what's next from Mr. Wiizard?

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]]>Johnny-LeeWiimoteChristopher Grant2008-04-30T14:30:00+00:00See the Wiimote AK-47 modhttp://www.joystiq.com/2008/04/24/see-the-wiimote-ak-47-mod/http://www.joystiq.com/2008/04/24/see-the-wiimote-ak-47-mod/http://www.joystiq.com/2008/04/24/see-the-wiimote-ak-47-mod/#commentsFiled under: , ,

This video was released a couple of months ago, but if there's one thing we can't pass up it's a great sight gag. You have to respect a guy who would go through all the trouble of merging a Wiimote and a plastic AK-47 just so he could use the butt of the gun to smash the noses of the titular critters in Rayman Raving Rabbids.

What's more, the modder actually goes through the trouble of teaching you how to tie a shemagh to help increase the verisimilitude of your experience. What a value!

[Thanks, overflow]

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]]>ak-47hacksmodswiimoteJustin McElroy2008-04-24T16:25:00+00:00Joystiq hands-on: LostWinds (WiiWare)http://www.joystiq.com/2008/04/15/joystiq-hands-on-lostwinds-wiiware/http://www.joystiq.com/2008/04/15/joystiq-hands-on-lostwinds-wiiware/http://www.joystiq.com/2008/04/15/joystiq-hands-on-lostwinds-wiiware/#commentsFiled under: , , ,


Briefly previewed at GDC, LostWinds is a stylish, creative take on platforming. The Nunchuk analog stick moves your small character over obstacles from a side-view. But the the character can't jump or climb very high; he needs the wind to push him up and over pits.

The Wii Remote fills this role naturally. A pointer swipe and button push gusts the wind into the world, lifting the small character to higher plateaus. Even ambient background objects like trees and grasses sway with the breeze. Later puzzles require you to guide the wind into other objects, not just the small fellow.

These techniques feel fresh and the visuals rival other Wii games. LostWinds was one of my favorite experiences from the Nintendo Media Summit.

Gallery: LostWinds

The beautiful game progressively builds more complicated controls through its several hours of play. The character can open his coat with one button, catching more wind and lifting even higher. Or he might not have the strength to move an object without a heavy gust.

Because of game's playful controls, I wish I could have spent the time progressing through the entire game. David Braben, founder of the developer Frontier, mentioned that his team has crafted a narrative adventure story around the character. I briefly saw some interstitial, 2D, cut-scene art and was impressed by the care put into the canvas-style paintings. I noticed many graphical flourishes in the 3D world, too, with several layers of the 3D background moving to show depth. Soft lighting effects shaded everything, from ambient plant life to beams streaming through trees.

LostWinds is finished, although it hasn't yet been scheduled for release. Braben hopes it's among the WiiWare launch titles. Pricing details and a confirmed ship date will follow.

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]]>frontierlostwindsnintendo-media-summit-08platformerwiimotewiiwareZack Stern2008-04-15T07:30:00+00:00Law of the Game on Joystiq: Patently Complicatedhttp://www.joystiq.com/2008/04/09/law-of-the-game-on-joystiq-patently-complicated/http://www.joystiq.com/2008/04/09/law-of-the-game-on-joystiq-patently-complicated/http://www.joystiq.com/2008/04/09/law-of-the-game-on-joystiq-patently-complicated/#commentsFiled under:

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:


Patents seem to be the intellectual property du jour for conflict in the video game world. After all, it was only a matter of time before the conflicts that have engulfed technology at large would spread to our little corner of the electronic world. However, patent law is not exactly a simple area of the law, and it's one that, like most of the other intellectual properties, is generally not well understood. Because of the complexity, someone mentioned it would be a good idea to give an overview of patent law and patent infringement. I should mention before I begin that I am not a patent attorney, meaning I haven't taken the patent bar, and so I wouldn't consider myself an expert on the subject. More importantly, this commentary applies to 'utility patents,' which is what most people mean when they simply say 'patent.'

To start from the most basic level, a patent is a type of intellectual property, like a copyright or a trademark. Patents, generally, protect ideas for a limited time (20 years in the US). The theory behind a patent is that someone who invents something should be able to profit from that product for some period of time before anyone can produce the item. So, for example, when a new pain reliever is patented, only the patent holder and those who have a license from the patent holder can produce the product until the patent expires. Once the patent has expired, then anyone can produce that product. In fact, this is the big catch with patenting: you have to expose the "formula" for the product, in detail, in the patent application, which becomes public record. Many companies opt to not patent items for this reason, keeping them as "trade secrets" instead. A well known example is the formula for Coca-Cola. While this overview may sound simple, there is much more to a patent.

Patents also have the most stringent requirements of any intellectual property. According to US patent law, anyone who 'invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.' However, there are more requirements beyond that statutory summary. First, the idea must be 'novel,' meaning it has to be something new and unique. In fact, if you have a product on the market for over a year, you are no longer eligible for a patent even if you invented the product. Second, the product must be 'nonobvious.' The nonobvious test simply means that the product can't be something that anyone in the field of study would come up with upon examination of the patent this patent is based on. Typically, changes in capacity, size, scale, etc. are considered 'obvious' changes. To put it into car terms, an obvious change to an in-line 4 cylinder engine would be an in-line 6 cylinder engine and a nonobvious change would be a gas-electric hybrid.

The third major requirement is that the discovery be 'useful.' There is actually a patent for non-useful articles (a 'design patent'), but a utility patent requires that the item be useful. Finally, the patent has to be filed for a 'patentable subject matter.' From the statute, that would be a 'process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.' There is some complexity when it comes to the idea of a 'software patent,' so much so that entire articles exist on the topic. Given that most of the gaming patent disputes have been over hardware, I will leave the software patent discussion for another time.

If you meet all of these requirements, the next big step would be to file a patent application. The application has a significant number of elements, but two of which are the most important to understanding the process. First, the application must disclose 'prior art.' Prior art are other patents that may be predecessors, in whole or in part, to the idea in the application. The second important element is the list of 'claims,' or the list of things you're asserting your invention does. The list of claims describes what is protected by the patent.

Once the application is filed, the process moves to what is called 'patent prosecution,' which is simply the back and forth between the patent office and the patent attorney over the specifics of the application. Typically, revisions may be made to the patent during this time, and the patent office may require certain ones. In addition to revisions, the patent office may dismiss some of the claims in the application from what will be the final patent, typically because they do not meet the requirements we've discussed. The most common reason for a claim being dismissed is that it is either obvious or not novel. It's important to note that dismissal of a claim based on the content of another patent does not mean the product is an infringement of the prior patent.

Once a patent is granted, the holder of the patent has the ability to license the product to others for production, sue for infringement, or even sell the entire patent to a patent holding company. It's important to note that not enforcing your patent rights, for example not suing those who infringe on the patent, can be seen as a failure to uphold the patent and can lead to the patent being negated. Moreover, other parties can sue to have a patent invalidated for a variety of reasons.

To take some of this and apply it to a gaming case, let's look briefly at the Goschy/Wii case. For those needing a summary, ex-Midway employee Goschy has filed suit claiming he basically invented the Wiimote. His claim is based, at least in part, on the filings found in patent 6,908,386.* He cites the Final Rejection and its use of his patent (6,545,661) as grounds for rejecting a number of the claims. As I noted previously, the use of a prior patent to reject claims is not evidence of patent infringement. However, the patent was issued on a number of the claims that were not rejected, and those claims make up the essential components of the Wiimote and Wii. It seems unlikely that Goschy's case for infringement will succeed on this point. Think of it this way: If Goschy had invented the mousetrap, and Nintendo invented a super duper mousetrap, then Nintendo could probably still get a patent, just not on a claim like "a mechanical device to trap mice." A claim like "a mechanical device to quickly kill mice" would likely be upheld.

Patent law is complicated. In fact, patent prosecution is the only specialty within the practice of law that requires its own specialized exam beyond the bar exam to be able to even practice in the area, for a combination of reasons including complexity and the necessary scientific background to be able to analyze these inventions. Hopefully this overview will help you understand a little more of what you read when these patent cases arise.

[*Patents are available to the public online. If you would like to look them up, go here, enter the validation text, then search the patent number. Most of these documents are under "Image File Wrapper."]

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

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]]>goschylawlaw-of-the-gamepatentpatent infringementPatentInfringementwiiwiimoteMark Methenitis2008-04-09T20:00:00+00:00Rumor: Microsoft making motion-sensing Xbox 360 'Wiimote'http://www.joystiq.com/2008/04/07/rumor-microsoft-making-motion-sensing-xbox-360-wiimote/http://www.joystiq.com/2008/04/07/rumor-microsoft-making-motion-sensing-xbox-360-wiimote/http://www.joystiq.com/2008/04/07/rumor-microsoft-making-motion-sensing-xbox-360-wiimote/#commentsFiled under: , ,


MTV News has a secret source who sent in the above "sketch" and some info on what they claim is a veritable Wiimote clone, courtesy of your friends and ours at Microsoft. Reportedly, the Xbox (marketing?) team has been hard at work aping Nintendo's waggling wonder, in an attempt to "match the Wii point for point." The project, which the anonymous source calls "a colossal clusterf---," is being handled to some degree by internal developer Rare, who has had difficulty "hitting its deadlines," apparently compromising Microsoft's ambitions to have a product release by the end of the year. The more astute amongst you may recall that X3F broke the news about Rare's upcoming XBLA game The Fast and the Furriest in January, which purportedly features "a wand type input device for gesture recognition."

While not a huge surprise, considering the contortions Microsoft has put itself through to appeal to the "casual" audience, we're pretty certain releasing yet another interface for the Xbox 360 isn't going to accomplish much of anything outside of adding more delicious bullet points to the box (which SKU would this be?) and marginalizing any piece of software that required it. You're beautiful just the way you are, Xbox 360.

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]]>BreakingNewsmotion-sensingMTV-NewsWiimoteChristopher Grant2008-04-07T17:06:00+00:00Non-Wiimote controls limited for Mario Kart Wiihttp://www.joystiq.com/2008/04/02/non-wiimote-controls-limited-for-mario-kart-wii/http://www.joystiq.com/2008/04/02/non-wiimote-controls-limited-for-mario-kart-wii/http://www.joystiq.com/2008/04/02/non-wiimote-controls-limited-for-mario-kart-wii/#commentsFiled under: , ,


click to enlarge

Fans of alternate Wii control schemes were obviously psyched when it was revealed that Mario Kart Wii would support a variety of control methods, including the Wii Classic Controller and Gamecube pad. But those fans might want to scale back their expectations, as an updated game fact sheet (posted on Nintendo's press site) claims that players who don't use the Wii Remote schemes will not be able to perform "certain moves" and "some maneuvers."

What maneuvers exactly? We're not quite sure, but the new mid-air tricks probably aren't among them -- A Link to the Future notes that an IGN preview specifically mentions Classic and Gamecube controller users can hit the d-pad to perform those. We find it hard to imagine that the plethora of joysticks and buttons on the alternate control schemes can't replicate the controls of the somewhat button-free design of the Wii Remote. Could this be an effort to encourage more use of the practically useless 'extremely useful' Wii Wheel? You'll know as soon as we do.

Gallery: Mario Kart Wii



From the fact sheet:

Control: Mario Kart Wii is compatible with four different control schemes, so players can customize how they want to play:
  • Wii Remote Controller (with or without Wii Wheel): Steer by tilting the Wii Remote left and right. Or snap the Wii Remote into the Wii Wheel to transform it into a steering wheel for an intuitive, motion-based control scheme.

  • Nunchuk Controller: Steer with the Control Stick on the Nunchuk and use the Wii Remote to accelerate, perform tricks and drift.

  • Classic Controller: Mario Kart veterans can let their thumbs do the driving with the Classic Controller. However, players cannot perform certain moves with this control scheme.

  • Nintendo GameCube[TM] Controller: Experienced Mario Kart fans may also enjoy this familiar scheme, although some maneuvers cannot be performed.

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]]>classic-controllergamecubemario-kartmario-kart-wiiwii-remotewii-wheelwiimoteKyle Orland2008-04-02T11:30:00+00:00U.S. Military using Wiimote-controlled Packbot to disable bombshttp://www.joystiq.com/2008/03/29/u-s-military-using-wiimote-controlled-packbot-to-disable-bombs/http://www.joystiq.com/2008/03/29/u-s-military-using-wiimote-controlled-packbot-to-disable-bombs/http://www.joystiq.com/2008/03/29/u-s-military-using-wiimote-controlled-packbot-to-disable-bombs/#commentsFiled under:


We like the way the U.S. military thinks. One of the Wii's biggest flaws is the painful stretches of downtime between its bigger releases, causing dust to settle on Nintendo's minuscule console and cobwebs to form on our Wiimotes. What better way to get more mileage out of our neglected gyroscopic peripherals than to use them to blow up actual bombs and landmines?

This must have been the thought process of those techno-wizards at iRobot, who have modified their Packbot model to be controlled by a standard Wii remote. It seems they discovered that Nintendo's motion-sensitive controller doesn't just lend itself to instinctive, natural interaction with games like Wii Tennis, but also with maneuvering rifle-mounted, explosive-detonating robots -- just remember to always use the wrist strap. Impaling a TV screen while hitting the Wii Bowling lanes is embarassing, throwing the reigns of a gun-toting war machine is just plain irresponsible.

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]]>bombirobotmilitarynintendopackbotrobotwiiwiimotewiiremoteGriffin McElroy2008-03-29T20:30:00+00:00Wii gets TV guide channel, Wiimote becomes universal in Japanhttp://www.joystiq.com/2008/03/04/wii-gets-tv-guide-channel-wiimote-becomes-universal-in-japan/http://www.joystiq.com/2008/03/04/wii-gets-tv-guide-channel-wiimote-becomes-universal-in-japan/http://www.joystiq.com/2008/03/04/wii-gets-tv-guide-channel-wiimote-becomes-universal-in-japan/#commentsFiled under:

terebi no tomo
Wii's 'Terebi no Tomo' Channel has launched in Japan, free for download from the Shop Channel. Better understood as 'TV Friend' Channel, the service, which was announced last November, provides users with an Electronic Program Guide (EPG) that updates over the internet from Japan's G-Guide service. While it might be a giant step backward for TiVo and DVR users, the new channel may be useful for elder Wii owners still stuck with ancient SD analog programming. EPG browsers can search by genre and keyword -- in 3D! -- and then 'stamp' programs of interest. These picks can then be shared with in-house users and coded Wii friends, and are used by Nintendo to give programs aggregated popularity scores. The service will also send out an alert to an email address specified during setup, 30 minutes prior to a stamped program's start time.

Additionally, while using the TV Friend Channel, the Wiimote will operate as a semi-functional universal remote, capable of changing channels, adjusting volume, and switching between the Wii and TV inputs. The 'hack' is accomplished with the sensor bar, which sends out an IR signal compatible with your display. The signal is bounced off a wall (or your head or whatever) and ideally lands on your TV's IR port. There's a faceless female voice that guides you through the IR calibration process via the Wiimote speaker (we knew it had a purpose!), just in case your screen goes dark ... and stays that way. Hey, it's free, remember?

[Via Engadget Japanese; thanks to Ittousai for translating!]

Gallery: TV Friend Channel (Wii)

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]]>epgjapanwii-channelwiimoteJames Ransom-Wiley2008-03-04T11:54:00+00:00Nintendo to sell Wii Wheel separately in Japanhttp://www.joystiq.com/2008/02/27/nintendo-to-sell-wii-wheel-separately-in-japan/http://www.joystiq.com/2008/02/27/nintendo-to-sell-wii-wheel-separately-in-japan/http://www.joystiq.com/2008/02/27/nintendo-to-sell-wii-wheel-separately-in-japan/#commentsFiled under: ,

What's the only thing better than a plastic wheel attachment for your Wii remote? Plastic wheels for all your friends' remotes, of course! Unfortunately, each copy of Mario Kart Wii only comes with one of Nintendo's revolutionary necessary new Wii Wheels.

Japanese gamers shouldn't worry, though, as Famitsu (machine translation) reveals that Nintendo will be offering additional wheels for sales at the bargain price of 1200 yen (about $11). No word on whether Americans will get the same chance, but with the market for useless plastic attachments for the Wii remote being what it is, we imagine a similar deal will come stateside eventually.

[Via SiliconEra]

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]]>accessoryJapanplasticremotewheelwii remotewii wheelwii-wheelwiimoteWiiRemoteWiiWheelKyle Orland2008-02-27T17:00:00+00:00The uber compassionate One-handed Wiimote modhttp://www.joystiq.com/2008/02/19/the-uber-compassionate-one-handed-wiimote-mod/http://www.joystiq.com/2008/02/19/the-uber-compassionate-one-handed-wiimote-mod/http://www.joystiq.com/2008/02/19/the-uber-compassionate-one-handed-wiimote-mod/#commentsFiled under: , ,


A wide majority of gamers don't have to worry about the logistics of actually interacting with their video games of choice -- the simplicity of picking up a controller and playing a game is the main draw of home consoles. However, gamers who suffer from certain physical handicaps are often not in the minds of console and controller designers, often excluding them with peripherals they may find difficult to use. Luckily, the Earth's got people like Ryan Culy.

Culy designed the pictured Wii Remote/Nunchuk hybrid with one of his friends, who had lost most of his left arm, in mind. By moving the C and Z buttons from the 'Chuk to the Wiimote, and by detaching the joystick and motion sensor so that they could be controlled by an elbow, the two peripherals can now be used with one arm. It's a very kind gesture from Culy -- one we hope will inspire future console and peripheral designers to keep gamers of all shapes and sizes in mind when they create their products.

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]]>controllerhandicapnintendonunchukremoteryanculywiiwiimoteGriffin McElroy2008-02-19T22:30:00+00:00React Recharge Dock powers 4 Wiimotes for $50http://www.joystiq.com/2008/02/07/react-recharge-dock-powers-4-wiimotes-for-50/http://www.joystiq.com/2008/02/07/react-recharge-dock-powers-4-wiimotes-for-50/http://www.joystiq.com/2008/02/07/react-recharge-dock-powers-4-wiimotes-for-50/#commentsFiled under: ,


React's Wii Recharge Dock isn't just a little bit late to the party but, at $50, it's a little pricier than some of the competition. But then we got to figuring that since it charges the four included 550 mAh batteries in four Wiimotes, not just two, the proportional value is clear. And considering the Wiimote is scientifically proven to eat batteries the way Mario downs mushrooms, some of you might consider a device such as this nothing short of a necessity, what with Brawl coming soon and all.

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]]>chargerReactWiimoteChristopher Grant2008-02-07T02:02:00+00:00