SemiSerious

On March 20, the famous Gibson Guitar Corporation sued Harmonix, MTV, and EA for infringement of US Patent 5,990,405 – System and Method for generating and controlling a Simulated Musical Concert Experience. The defendants named are meant to cover the entire Guitar Hero series as well as the newer Rock Band game. Gibson has since expanded its suit to cover various retailers who sell the games including Wal-Mart.

Gibson Guitar Corporation’s complaint, filed in the Nashville Division of Tennessee District Court (courtesy of Wired’s Game|Life) specifies the alleged infringement like this:

THE INFRINGING PRODUCTS AT ISSUE
16. Defendants have and continue to manufacture and/or sell products that infringe, contribute to the infringement of and/or induce the infringement of at least claims 1, 13-15, 25 and 28 of the ‘405 Patent and/or have no other substantial noninfringing uses.

Considering how the music industry works today, you have to assume that Harmonix spent a lot of time and legal fee dollars working out licensing deals with record labels for the songs that appear in Guitar Hero. After all that work, it’s no surprise that they may have overlooked the possibility of a company outside the gaming world developing the concept first.

But that’s not all. According to SI device sourcing guru, Allan Yogasingam, ActiVision has already paid a license fee to Gibson for use of the signature Les Paul style of guitar for its game controller. The Les Paul image and brand is a lot more valuable (and stronger) than the patent cited in this case.

Before reading the complaint above, I read through the claims of the ‘405 patent trying to determine what angle Gibson’s lawyers were taking. There are four independent claims and 26 supporting claims. At least one independent claim needs to be map to the game system for Gibson to have a case.

Claim 13 is the broadest, but will it hold up to prior art scrutiny? How do karaoke machines fit in? Wikipedia suggests that the first machine was invented in Japan in the 1970’s. The entry for Karaoke history points out that the original inventor did not patent the machine. The Philippines granted a Letters Patent (UM-5269) in 1983 to its most famous inventor, Roberto del Rosario, for a system originally prototyped in 1975.

But one key element of ‘405 in all the claims is the use of a video interface as well. Although the earliest karaoke machines relied on singers to know the words or read them from a paper song sheet, video teleprompting entered the fray some time in the eighties. I may not be young and hip and part of today’s crowd of gamers, but I wasn’t quite hitting the karaoke bars back then. Perhaps one of my blogging elders could help me sort out more accurate dates for the introduction of video into the karaoke system. The ‘405 patent was filed in 1998 years after video technology was readily available to the karaoke set.

Claim 21 maps most directly to the game. It specifies a guitar. That is the focal point. Gibson’s lawyers arguments against the prior art hinge on the definition of “musical instrument.” It won’t be the first time a huge bill gets rung up over semantics, but this case will come down to whether singing into a microphone constitutes a musical instrument or not. Your favorite singer won’t get a vote.
 

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