Video Game Co. Seeks ITC Review Of Nintendo's IP Win (Law360)

By Ryan Davis

Interactive game maker Creative Kingdoms LLC asked the U.S. International Trade Commission to review an administrative law judge's ruling that Nintendo Co. Ltd.'s Wii video game system did not infringe three Creative Kingdoms patents, saying in a petition released Thursday that the judge "made clear errors of law and fact."

In a 134-page initial determination issued Aug. 31 and made public Wednesday, ITC Administrative Law Judge Charles E. Bullock ruled that Nintendo's importation of the Wii and its wireless controllers did not violate Section 337 of the Tariff Act because the patents are invalid and not infringed.

In a petition for review dated Sept. 17 and made public Thursday, Creative Kingdoms said that Judge Bullock "committed reversible error" in finding that patents invalid for lack of written description and enablement, and that to see the error "one need only apply common sense."

According to Creative Kingdoms, it was well-known in the art how to use accelerometers in a handheld game controller to distinguish one motion from another. Since the patents-in-suit make clear that those technologies can be used in the invention, that should have been sufficient to find enablement and adequate written description, Creative Kingdoms said.

The judge's ruling "creates a new enablement standard that is far more stringent and harsh than anything the Federal Circuit has ever applied," the company said, since it would require patentee to disclose every possible embodiment, even for variations that are well-known in the art.

Creative Kingdoms also said that the judge misconstrued key terms of its patents and that even under the incorrect construction, Nintendo still should have been found to infringe. The judge also incorrectly ruled that Creative Kingdoms does not satisfy the domestic industry requirement, it said.

The ITC's Office of Unfair Import Investigations also asked the commission to review the ruling with respect to the finding that Creative Kingdoms did not satisfy the economic prong of the domestic industry requirement. The ITC staff said the rest of the ruling did not need to be reviewed.

The case began in March 2011, when Creative Kingdoms filed a complaint alleging that Nintendo's popular Wii and 3DS video game systems infringed its patents by mimicking a key feature in Creative Kingdoms' primary product, the MagiQuest video game.

The distinguishing feature of both games is a motion-activated, portable wireless handheld device that "facilitates a physically interactive play experience for participants," the complaint said. "This technology represents the core of Creative Kingdoms' flagship product."

Like Nintendo's Wii system, Creative Kingdoms' MagiQuest features wireless remote controls that look like "magic wands." Players use these wands to control and interact with the video game.

Judge Bullock found that Nintendo's products did not meet all the limitations of the patents and that Nintendo provided clear and convincing evidence that Creative Kingdoms' patents were not enabled, rendering them invalid.

The patents-in-suit are U.S. Patent Numbers 7,500,917; 7,850,527; and 7,896,742.

Creative Kingdoms is represented by James R. Barney, Paul C. Goulet, Michael A. Morin, Aiden C. Skoyles and Susan Y. Tull of Finnegan Henderson Farabow Garrett & Dunner LLP.

Nintendo is represented by Stephen C. Neal, Thomas J. Friel, Timothy S. Teter, Matthew J. Brigham and Stephen Smith of Cooley LLP.

The ITC case is In the Matter of Certain Video Game Systems and Wireless Controllers and Components Thereof, case number 337-TA-770, in the U.S. International Trade Commission.

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ITC Section 337 Litigation