Patently-O Bits and Bytes No. 60: Nintendo Wii, etc.

The PatentBuddy website has mined your registration data from the USPTO and created some interesting results. They have found that folks are leaving large law firms more quickly than before. [LINK]. Speaking of jobs: Ten new job listings in the past ten days on the Patently-O Job Board.

Public Interest in Patent Law Declining: The graph below shows the relative frequency of Google searches for Patent Law.

Nintendo Wii: I was planning to buy the Wii as soon as it reaches Columbia Missouri . . . Now the company Hillcrest Labs has filed both an ITC complaint and a federal patent case requesting that the commission institute a Section 337 investigation of the Wii and its “three-dimensional pointing devices.” The complaints allege infringement of four Hillcrest patents: U.S. Patent Nos. 7,139,983, 7,158,118, 7,262,760, and 7,414,611. The patents include several broad claims directed toward pointing devices that use internal accelerometers to track movements (and the lack of movement) and have a priority date of sometime in 2004. The ’611 patent issued on August 19, 2008 and the claims appear directed at capturing the Wii.

33 thoughts on “Patently-O Bits and Bytes No. 60: Nintendo Wii, etc.

  1. Bharath Paper Conversions – manufacturers and exporters of high quality paper cones, paper tubes, paper cores, edge protectors, composite cans, conical bolt boxes, mailing tubes, construction cones, waxed paper cones.

  2. Bharath Paper Conversions – manufacturers and exporters of high quality paper cones, paper tubes, paper cores, edge protectors, composite cans, conical bolt boxes, mailing tubes, construction cones, waxed paper cones.

  3. link to cnn.com

    The tongue’s promise has long enticed scientists. In the 1960s, research work focused on turning the tongue into a primitive lens by attaching electrodes to the tissue. More recent studies have connected a camera that activates tongue electrodes in the shape of an object, helping blind people sense images.

    A Palo Alto, Calif.-based company, newAbilities Systems Inc., has already designed a nine-button keypad placed on the roof of the mouth to control electronics.

    Ghovanloo’s work, however, centers on creating a virtual keyboard instead of a physical one. He does that through a magnet about 3 millimeters wide that’s placed under the tip of the tongue.

    The magnet’s movement is tracked by sensors on the side of each cheek, which sends data to a receiver atop a rather bulky set of headgear. It is then processed by software that converts the movement into commands for a wheelchair or other electronics.

    After turning the system on, users are asked to establish six commands: Left, right, forward, backward, single-click and double-click. A graduate student who tested the technology was cruising the lab at will in a wheelchair, tongue firmly in cheek.

    ——

    Okay, that’s all so wonderful. With the help of a computer, the tongue can work like a hand. Who would ever have guessed, except maybe Bobby Brady when he was trying to eat that pie on TV so many years ago. So get ready for this:

    “Ghovanloo said he hopes he could one day add dozens more commands that turn teeth into keyboards and cheeks into computer consoles. For example, “Left-up could be turning lights on, right-down could be turning off the TV,” Ghovanloo said.”

    The claims just write themselves, don’t they? Get to work, entrepeneurs!!!!!!

  4. wait. Wii was first announced in 2004 and probably written about. Either way, they likely began development well before then. One doesn’t create a new platform in just a year.

  5. The Patent Office needs better search and classification tools, better training and better emphasis on finding the best art on the first or at least the second OA.

  6. Because someone was talking about it above Malcolm.

    As was stated above, it’s very likely that the examiner didn’t even search in the proper classification for this case. Moreso than you probably realize. The examiner says “well this is my case, and it technically is one of these things that the classification says is in my class, so this must be the place to search”. To be 100% honest, some of the classes names aren’t very clear to people that aren’t that familiar with that art.

    “The USPTO should be careful in checking whether or not the “invention” truly qualifies for a government monopoly.”

    The office is as “careful” as you pay them to be, just like what happens in every other job in this world. You want low filing fees? Fine, you got them. You want high fees? Talk to congress.

  7. “The office isn’t here to weed out claims that would take a million dollars (or even 2000$) in resources to find art on.”

    Maybe so. Of course, that has nothing to do with a claim like claim 1 of USPN 7,292,151 so it’s not clear why you bother raising the issue.

  8. “The office isn’t here to weed out claims that would take a million dollars (or even 2000$) in resources to find art on.”

    The government is granting monopolies. The USPTO should be careful in checking whether or not the “invention” truly qualifies for a government monopoly.

    “If people continue to abuse the patent system by getting obvious claims and harrassing people with them then congress will react by changing the laws.”

    And that is the point that people like JAOI just cannot seem to understand – that if the existing law allows abuses and the courts do not deal with the abuses, eventually Congress will and perhaps in a way even less to his liking than what SCOTUS has been doing.

  9. I don’t know Malcolm, I used to care a lot about getting rid of all the obvious patents at the office rather than in litigation, but to be honest my opinion on this is changing. The office isn’t here to weed out claims that would take a million dollars (or even 2000$) in resources to find art on. Sorry, they’re just not. With KSR claims can be knocked out easier than ever in litigation, just show all features in somewhat related references and come up with some bs motivation or use the new reasons straight from KSR. If people continue to abuse the patent system by getting obvious claims and harrassing people with them then congress will react by changing the laws. No big deal. Life goes on.

    Signed,
    Just doesn’t care that much anymore

  10. “If the patent is so bad, it will be proven as such during litigation. Is it so bad that Nintendo bears this (potential) burden instead of the US government?”

    This isn’t even worthy of a response.

  11. Smashmouth-

    The specification, combined with knowledge of a PHOSITA, must reasonably enable the entire scope of the claims as construed. Novel aspects of the claims must be enabled at least by the specification alone.

    You are correct that (a lack of) “undue experimentation” is the test for enablement; the case In re Wands spells out further what “undue experimentation” is.

    Also have a look at Automotive Technologies Int’l v. BMW (Fed. Cir. 2007); Liebel-Flarsheim v. Medrad (Fed. Cir. 2007); and Sitrick v. Dreamworks (Fed. Cir. 2008).

  12. Perhaps MM can cover the Liebel-Flarsheim point, when answering Football: does the spec have to enable over the width of the claim, or is it enough to enable a pinpoint embodiment within the protected area(scope) of the claim in view.

  13. MM–

    Thanks for the clarification. I have a lot to learn. Am I correct to think that the spec and the claims, read as a whole, must enable a PHOSITA to re-create the invention without “undue experimentation”?

  14. “These claims are so broad as to be useless for enabling the invention.”

    The claims don’t have to enable the invention, the spec has to enable the claims.

    I think the prior art issues raised by Blaise will probably be what kills this patent, though.

  15. With its claims embracing a huge swathe of the everyday activity of millions of people, industrial, commercial and domestic, since long before its filing date, this is one quality-challenged patent for which the dismissive, swinging on a swing reply:

    “Who cares. Let him have his issue certificate. It does no harm, for nobody will ever infringe”

    doesn’t convince. Meanwhile, pendencies remain.

  16. “What doesn’t come out in the wash, comes out in the rinse. If the patent is so bad, it will be proven as such during litigation. Is it so bad that Nintendo bears this (potential) burden instead of the US government?”

    This burden can run into the millions of $$$, and it’s not always born by a deep-pocket party. (Even if if were shouldered by a deep-pocket, that still can fly in the face of substantial justice.)

    I also see a 112 problem here. These claims are so broad as to be useless for enabling the invention. The quid pro quo with the public has broken down, and I suspect this situation is not so atypical.

  17. “In any event: disgusting.”

    What doesn’t come out in the wash, comes out in the rinse. If the patent is so bad, it will be proven as such during litigation. Is it so bad that Nintendo bears this (potential) burden instead of the US government? Won’t (potential) examination mistakes be made no matter where we set the obviousness bar?

    Malcolm – big fan here. I am surprised that fewer commenters on these boards appreciate your sarcasm and trolling. Make an outrageous, untenable, anti-patent comment and watch the commenters tie themselves in knots! well done.

  18. Malcolm,

    It is more likely that the examiners issuing these patents have fell into a pigeonhole mindset where they only bother to search the patent classes to which their art unit is assigned. In the instant cases the patent applications were classified in the computer graphics processing class and the examiners did not think to search (or was completely unaware of) the patent classifications for video game control devices. As a former examiner myself (2000-2005) I can tell you that there was very little training in classification at the PTO and from what I hear the patent academy has not remedied this situation. Unfortunately there may be a growing number of examiners who are either too inexperienced or careless to learn correct search methodologies on their own.

  19. “Are you claiming that this was known or obvious as of 7/29/04, Malcolm, or something else?”

    All three. As with the dumbxss toolbar claims we’ve been discussing, this claim covers the entire idea of remote control with feedback. You don’t get a claim to an old concept just because you (allegedly) invent one fancy embodiment of it. You get a claim to that embodiment. That embodiment *is* your invention. Probably the lackey who issued this thing thought it was “pioneering” (as if that meant somethng) or maybe he/she was just lazy or incompetent. In any event: disgusting.

  20. Re: validity of US Patent 7,292,151 and 7,414,611

    Since the examination of these patents indicates zero searching in the U.S. patent classes devoted to video games (particularly class 463, subclasses 36-39 – hand manipulated video game input device) the validity seems questionable. Case in point a quick five minute search produced this patent

    US 6545661 (priority June 21, 1999)

    Abstract:

    In one aspect of the present invention, there is provided a video game system including a game controller, a video display and a hand-held control unit. The game controller is coupled to the control unit and the video display. The control unit houses an accelerometer that senses the tilt of the control unit with respect to an axis. The accelerometer produces an acceleration signal indicating the tilt of the control unit with respect to the axis. The game controller processes the acceleration signal to control the movement of a game character on the video display.

  21. Are you claiming that this was known or obvious as of 7/29/04, Malcolm, or something else? I smell something wrong with the claim (I haven’t read the description), but not with respect to 102/103, since I’m not smart enough to be aware of all the art that’s out there.

  22. “US Patent 7,292,151 (priority July 29, 2004) having claim 1 which reads:

    1. A system for tracking movement of a user, comprising:

    a first communication device comprising a transmitter for transmitting signals, a receiver for receiving signals and an output device, said first communication device adapted to be hand-held;

    a processing system, remote from the first communication device, for wirelessly receiving said transmitted signals from said first communication device, said processing system adapted to determine movement information for said first communication device and sending data signals to said first communication device for providing feedback or control data; and

    wherein said first communication device receives and processes said data signals from said processing system and wherein the output device provides sensory stimuli according to the received data signals.”

    Anyone here want to defend this pile of you know what?

    I didn’t think so. What a sad joke of a patent office we have.

  23. In fact, US 4787051 is so relevant that it is cited on the face of three of the patents in question. Good luck with that bar exam Senor Smith.

    Sorta sorry for the snippy comment… it’s Friday, the weather is beautiful and I’m just a bitter searcher.

  24. In regard to the Wii, while working as a patent clerk I found a patent issued to Tektronix that looked like the Wii controller invention.

    4787051 “Inertial mouse system,” filed May 16, 1986 and issued 1988.

    It looked like the Wii came out just after this patent expired.

    To me, this device looks is similar to the 3D mouse disclosure of the Hillcrest Labs patents. The Nintendo attorneys should take notice of this one.

    Anyway back to studying for the patent bar exam.

  25. In regard to the Wii, while working as a patent clerk I found a patent issued to Tektronix that looked like the Wii controller invention.

    4787051 “Inertial mouse system,” filed May 16, 1986 and issued 1988.

    It looked like the Wii came out just after this patent expired.

    To me, this device looks is similar to the 3D mouse disclosure of the Hillcrest Labs patents. The Nintendo attorneys should take notice of this one.

    Anyway back to studying for the patent bar exam.

  26. As far as Wii related patents go also of interest may be
    US Patent 7,292,151 (priority July 29, 2004) having claim 1 which reads:

    1. A system for tracking movement of a user, comprising:

    a first communication device comprising a transmitter for transmitting signals, a receiver for receiving signals and an output device, said first communication device adapted to be hand-held;

    a processing system, remote from the first communication device, for wirelessly receiving said transmitted signals from said first communication device, said processing system adapted to determine movement information for said first communication device and sending data signals to said first communication device for providing feedback or control data; and

    wherein said first communication device receives and processes said data signals from said processing system and wherein the output device provides sensory stimuli according to the received data signals.

  27. Jaoi™ Tipsly-O-The-Day:

    Word count requirements sometimes read like this:

    Word Count: The total number of words in the brief, inclusive of point headings, sub-point headings, and footnotes, and exclusive of pages containing the Table of Contents, Table of Authorities, Images, Proof of Service, Certificate of Compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 6,957.

    When using MS Word, are you aware that “Tools”, “Word Count” DOES NOT INCLUDE footnotes? (Ooops!)

    * * * * *

    When using 14 pt. type, are you aware that “Double” in MS Word is 31.5 pts. from one baseline to the next baseline?
    You save about 11% of the pages by setting “Exactly” to 28 pt!

    A 50 page document at 31.5 pt. becomes less that 45 pages at 28 pt.

    Try it – you’ll thank me in the morning.

    Jaoi (©¿®)
    只是一個普通的發明(技術備忘錄)

  28. I, too, agree that declining public interest is a good thing. Now we can all get back to work. The amateurs and poseurs such as Mooney will have to return to their damp basements and resume listening to Q Lazzarus’ Goodbye Horses.

  29. “Position entails patent application preparation and prosecution (mostly for domestic clients), and technical assistance with other IP counseling projects. This is not an IP litigation position. Candidate will be eligible for full law school tuition reimbursement.”

    That’s what I’m talking about.

  30. “They have found that folks are leaving large law firms more quickly than before.”

    I assume “folks” means “associates.” The partners are staying, of course, and trying to maximize their earnings (read: minimize sharing with new partners) before the whole model goes to sh*t.

  31. “interest in patent law declining” may be a good thing, because as interest increased it brought out all of the crazy destructive ideas for changing patent laws and patent office rules

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