Major Video Game Cos. Push Del. Court To Toss IP Suit
By Matt Chiappardi
Law360, Wilmington (May 2, 2016, 10:05 PM ET) -- Several major video game publishers including Activision Blizzard Inc., Electronic Arts Inc. and 2K Sports Inc. pushed the Delaware federal court Monday to throw out a patent lawsuit from technology incubator Acceleration Bay LLC that targets their most popular franchises, arguing the company doesn't have the right to sue.
During a hearing in Wilmington, the game publishers' attorney David P. Enzminger of Winston & Strawn LLP argued Acceleration Bay doesn't actually own all of the rights to the patents at issue in the suit, and thus doesn't have standing to lodge the type of actions it has.
The patents involved in the lawsuit were initially issued to a unit of The Boeing Co., but through several agreements, the rights were dispersed among at least four different parties including Acceleration Bay and Sony Computer Entertainment America Inc., according to court records. The video game companies argue that the patent purchase agreement — details of which are heavily redacted in the court record — Boeing struck with Acceleration Bay didn't actually transfer over all of the components needed for the technology incubator to be considered the so-called patentee and thus have the ability to launch a lawsuit on its own.
“They are merely a licensee,” Enzminger told U.S. District Judge Richard G. Andrews.
In order for Acceleration Bay to launch its lawsuit, Boeing would have to be a part of it for the action to go forward.
What's more, the video game publishers claim that Boeing retained the ability to enforce its IP rights if any infringement is alleged to have occurred in its so-called field of use. Acceleration Bays alleges that video games such as the “Call of Duty” series infringe the patents, but the video game companies counter that the accusations center on parts of the software that deal with flight and missile simulators, things that fall within Boeing's bailiwick.
Acceleration Bay returned fire with arguments that were the polar opposite of nearly all of the video game publishers' points, strongly refuting that it was not the owner of the patents in question. The company's attorney Paul J. Andre of Kramer Levin Naftalis & Frankel LLP said that “all rights” belonged to Acceleration Bay, and they did not need Boeing in order to sue over any of the patents.
In fact, the opposite is true and Boeing would need Acceleration Bay to ensure a lawsuit goes ahead, Andre said.
Andre also refuted whether video games would be in Boeing's field of use anyway, calling them “fantasy” not flight simulators and “made for 12-year-old boys to blow things up.”
Judge Andrews did not make a decision Monday, saying he would take the matter under advisement.
Acceleration Bay began launching lawsuits in Delaware against several video game publishers last year, also including Rockstar Games Inc. and Take-Two Interactive Software Inc, makers of the popular "Grand Theft Auto" series.
The lawsuits targeted top selling games such as “Call of Duty,” “World of Warcraft,” and sports titles like “FIFA 15,” “NHL 15” and “Tiger Woods PGA Tour 14.”
The patents-in-suit are U.S. Patent Numbers 6,701,344; 6,714,966; 6,732,147; 6,829,634; 6,910,069; and 6,920,497.
Acceleration Bay is represented by Philip A. Rovner and Jonathan A. Choa of Potter Anderson & Corroon LLP and Paul J. Andre, Lisa Kobialka and James R. Hannah of Kramer Levin Naftalis & Frankel LLP.
The video game producers are represented by Jack B. Blumenfeld and Stephen J. Kraftschik of Morris Nichols Arsht &Tunnell LLP, and Michael A. Tomasulo, David P. Enzminger, Gino Cheng, David K. Lin and Daniel K. Webb of Winston & Strawn LLP.
The case is Acceleration Bay LLC v. Electronics Arts Inc. et al., case number 1:15-cv-00282, in the U.S. District Court for the District of Delaware.
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