Gibson still thinks a video game is a musical instrument, sues Harmonix for Rock Band

We still think Gibson's attempt to claim that Guitar Hero violates its patent on "simulating a musical performance with a musical instrument" is totally unfounded and ridiculous for a number of reasons (it involves a "3-D headset," for one), but we can sort of see why the company is now suing Harmonix as well -- they're a Fender outfit, after all. The third in a series of petulant lawsuits filed by the notoriously litigious guitar maker over the patent claims Harmonix, Viacom, and Electronic Arts are all liable for Rock Band, but it's not clear if Gibson is going after just the guitars or the drum kit as well, which is probably closer to actually counting as an instrument. Of course, the patent itself hasn't changed since the last time we read it, and it's obvious that Gibson's going to have itself quite a challenge convincing the court that playing Guitar Hero or Rock Band involves musical instruments of any kind -- after all, it's just Simon, right?

Disclaimer: Nilay is a lawyer and a rock star, but he's not your lawyer (or your monkey, man) and this is not legal advice or analysis.

[CUBSWILLWIN @ Mar 21st 2008 5:57PM]

Gibson, it's OK if you don't have any money. Just tell us, the nice consumers and don't be mean to the people we like better than you :-)

[Nate @ Mar 21st 2008 5:58PM]

My quest for the world's dumbest patent is finally at an end.

[Allan @ Mar 22nd 2008 12:10AM]

I don't think I'd say it's the world's dumbest patent... but maybe the world's dumbest attempt of enforcement.

[John @ Mar 21st 2008 5:59PM]

Maybe they saw the Guitar Queer-o episode of South Park and think that people play these games in concerts or something.

[nxtiak @ Mar 21st 2008 6:01PM]

So something that makes "clicky clicky clack clack" noises means it's a musical performance?

[whatishalo? @ Mar 21st 2008 10:11PM]

What about all the kids who have a real guitar at home and 'play' along with the stereo jamming but don't have it plugged in? Are they not violating the patent for "simulating a musical performance with a musical instrument" and liable to be sued too?

Is there a reward? I'll turn in my neighbor Eddie 'air guitar' VanWailin' for $100

[Zak @ Mar 21st 2008 6:01PM]

Nilay, that disclaimer = best so far.

[Alex Padilla @ Mar 21st 2008 6:05PM]

Two things:

1. I've lost all respect for Gibson as a corporation and fine maker of musical instruments

2. Nilay, I love your disclaimers

[NBShermanator @ Mar 21st 2008 6:16PM]

Plastic Guitar Law Suit Edition 3: Makers of Simon vs Guitar Hero

[eM @ Mar 21st 2008 6:31PM]

Nilay, for a lawyer you have terrible reading comprehension. The 3-D headset is in the title of the patent, but not in the broadest claims and is therefore not relevant to the issue at hand.

[Nilay Patel @ Mar 21st 2008 6:48PM]

It's only called a "3D" headset in the abstract, but a "stereoscopic headset" is specifically claimed in Claim 12. Same thing.

[rp @ Mar 21st 2008 7:02PM]

Owned by legalese! That'll teach you to fuck with justice, as Sandra Day used to say in her younger days on the highest court.

[emagius @ Mar 21st 2008 9:22PM]

@Nilay:

That doesn't freakin' matter. Learn how patents work, Engadget writers.

The BROADEST claim is [the most] important. Additional limitations (e.g., those of claim 12) don't have to be used for a product/method/etc. to be infringing. If Activision et al. are infringing on *any* of the claims, then they're infringing on the patent. There's no requirement that they infringe on *every* claim, as you appear to be arguing.

I had hoped you would realize your mistake and simply correct it, but obviously any training you might have had in IP law has long since departed, leaving only moronic arrogance in its wake. Geez, this isn't even Patents 101. It's like junior-high-remedial-IP.

[Nilay Patel @ Mar 21st 2008 9:58PM]

I said a "number of reasons" and picked the 3D headset as being a particularly ridiculous example of the various claims asserted in the patent. I think the broadest claim, for simulating a musical performance, is equally inapplicable. I cited claim 12 because I thought you were questioning the location of the 3D headset claim.

[emagius @ Mar 21st 2008 10:29PM]

@Nilay:

Ah. So you did realize it, but chose to be purposefully misleading. I get it. Very lawyer like. ;)

I do want to apologize for my language earlier. If I could rewrite those comments in a more civilized tone, I would.

[EdgeOne @ Mar 22nd 2008 8:02AM]

@ emagius
If you are so offended by this site/these posts then go away, NO ONE will miss you.

2nd It seems wrong that someone can patient something, sit on it while others actually create something, and then be sued by the patent holder who has done nothing with it.

Gibson has tarnished their name in my eye, and that's saying a lot since they throw the best CES parties! (Free drinks and food while seeing Les Paul play live 10 feet from me!)

PS Just bought Rock Band @ Wal-Mart for $149 on sale; can't wait to play it!

[Marc @ Mar 21st 2008 6:25PM]

i'd love to give my opinion on guitar hero or rock band but, the thing is, nobody seems to sell it.

sure, i've went into gamestop a couple of times.... lokked at the poster... walked out with nothing. do they keep them behind the counter or something? come on!

[David Vogt @ Mar 21st 2008 7:19PM]

I believe they do. Have you tried asking for it? Don't be shy! :)

[Marc @ Mar 21st 2008 10:02PM]

um... i dunno, those people seem sc-sc-scary :)

[Allan @ Mar 22nd 2008 12:12AM]

Every Best Buy I've been in lately (2 or 3 different ones) has had stacks and stacks of Rock Band lining the isles. Even Target had a bunch of GH3 games around.

[Marvin Quach @ Mar 22nd 2008 8:18AM]

Dude, I don't know where you're shopping but every time I've been to the Gamestop near me (and this is in a COLLEGE campus mind you), there has been stacks of Rock Band lining the floor... not to mention if you're "scared" to ask for them, you can always shop online (like Amazon) and get a set for probably even cheaper than in the store because you don't have to pay taxes (in theory).

[Farris @ Mar 21st 2008 6:29PM]

The title should be in the form of the "Crapgadget Part III" or the old iPod lookalike ones (can't remember the exact verbage)

Lawsuit Hero: Part III

[Fred @ Mar 21st 2008 6:30PM]

MEH! I'm so tired of this. Gibson must have some supremely stupid people in their employ. They are killing their brand image for the sake of trying to squeeze a few buck out of some game makers.

[ScareyJ @ Mar 21st 2008 7:08PM]

This pretty much undoes everything the American Chopper publicity did for them.

[Philippe @ Mar 21st 2008 6:41PM]

I don't have or even tried any of these guitar-based games, so my question is do they just light up the color "keys" on the screen when you press the buttons on the guitar, or you actually hear the wrong note if you press the wrong button?

If they just light up the key on the screen, they're definitively not musical instruments. If they produce a musical sound when the button is pressed on the guitar, then that might be slightly trickier case.

[Jason @ Mar 21st 2008 6:52PM]

No, the buttons only make a sound if you hit the right one (ie, you can not play your own melody on the controller). Besides that, the buttons are only temporarily assigned notes, so in the strictly technical sense you could never "play" them as instruments anyways, because there's no way of knowing which button refers to which note.

[Philippe @ Mar 21st 2008 7:00PM]

Thanks Jason.

[phrogg @ Mar 21st 2008 7:40PM]

At least in the GH games, striking the wrong note produces a sound similar to a "broken string" or squeaking the pick on the strings. In other words, they do make noise, but it's not notes.

[skronk @ Mar 21st 2008 9:09PM]

Jason - your explanation of why the GH is not an instrument means that a synthesizer is also not an instrument. Actually, neither is a guitar since the tuning is variable.

[Jason @ Mar 21st 2008 6:47PM]

The actual patent seems to cover playing an instrument, which creates controlling signals that play back audio and video tracks from a real concert to simulate being there. The patent mentions the use of a special guitar-only track that can be synchronized to the player's actions (like in GH), but unlike in guitar hero it also specifies the recorded track could be bypassed and instead play the instrument's real signal. This seems to indicate that the patent covers real instruments with added equipment, not simply special controllers (regardless of their shape). The patent also makes no mention of using computer generated graphics to simulate a concert, just the playback of recorded video.

I am NOT a lawyer, and I only skimmed through. If I am wrong, please flame promptly!

[Joseph @ Mar 21st 2008 6:47PM]

Are companies waiting for others to become profitable before suing?

[skronk @ Mar 25th 2008 1:27AM]

Yes. Of course. "As Willie Sutton the bank robber said when asked why he robbed banks, 'because that's where the money is'."

Why would anybody sue over a patent infringement in their target didn't make money?

[trum @ Apr 22nd 2008 7:57AM]

@ Skronk
I dunno... the RIAA seems pretty happy suing penniless kids and old women...

[russ @ Mar 21st 2008 6:48PM]

this is what all of you i-played-guitar-hero-now-i-can-play-the-real-guitar folks get.

[Jonathan-DBOSS @ Mar 21st 2008 6:54PM]

But, does it really MEAN anything?

[anonymous @ Mar 21st 2008 7:01PM]

Does Chewbacca live on Endor?

[Meh286 @ Mar 21st 2008 7:11PM]

It does not make sense!

[mymaclife @ Mar 21st 2008 6:56PM]

Next thing you know they'll be suing fat black guitar players for imitating their BB King 335.

Gibson = Litigious cocks!

[Bryan Thornsberry @ Mar 21st 2008 7:00PM]

This case is seeming more and more fishy by the minute. Does it seem like to any of you, that Gibson (who apparently gave the rights to use the guitar design's and instrument designs, logo's, branding, identity, etc, in all the previous games) would JUST NOW catch on to the fact that "yeah, your stuff is going to be recreated sans strings to use in this video game? Doubt it. Either one side or the other sides lawyers didnt explain fully what each side was looking to get out of this thing, or we have a true conspiracy here.

Is it possible, just maybe, that Gibsons lawyers filed the patents, wording them just right, then gave the rights to the game companies, let them get millions of dollars, just to turn around and sue them to get some real serious money into their bank accounts? Could it be some legal chess match that was looked into far before the game was made? Could I be on paoti?

Either way. What a mess. I definately wouldnt want to be the head of a major corporation these days... the stress just cant be worth the paycheck.

[rp @ Mar 21st 2008 7:09PM]

They sure did a crappy job of wording it if so. I also kind of think that Activision went to Gibson with their idea for the game trying to get Gibson on board for the guitar replica to give the game more clout in the guitar/gaming community. Tony Hawk's Pro Skater wouldn't be as cool if it were like Fred Savage's Pro Skater instead. It's all about branding and marketing. Gibson was smart to get on board, but not so smart in suing them.
On a related note, I'd gladly take the stress of a CEO (what is that exactly if CEOs can destroy companies with what seems like complete and total ignorance and still get a huge payout once they're severed) if it meant getting paid millions and millions of dollars.

[Joseph @ Mar 21st 2008 7:11PM]

Your comment is much better than mine.

[Bryan Thornsberry @ Mar 21st 2008 7:13PM]

More like longer... but still the same idea. I saw you had wrote that after I posted and was like, damn, at least I'm not the only one who thinks these companies are seemingly getting shady as fuck lately when it comes to the legal game.

[Fed @ Mar 21st 2008 7:40PM]

Money grubbing bastards, burn them. Burn them all.

[dab0neman @ Mar 21st 2008 8:05PM]

That settles it. Gibson is *really* "drinking the kool aid" unlike all those guys in sports that we think are drinking the kool aid.

It was nice knowing the Gibson Guitar Company. RIP after the many many many law suits to you!

http://www.mmab0nes.com
http://www.b0nehome.com

[Joe @ Mar 21st 2008 8:08PM]

Does all this suing mean that Gibson is coming up with a Guitar Hero-like game (with real instruments and 3D headsets) in the future?

[thatkidmattt @ Mar 22nd 2008 2:16AM]

If the guitars are any thing close to as heavy as anything that Gibson makes then I hope that they make a "chiropractor" game as well...

[Paul @ Mar 21st 2008 8:29PM]

What the hell do they think they're doing?

[skronk @ Mar 21st 2008 9:08PM]

"It's only called a "3D" headset in the abstract, but a "stereoscopic headset" is specifically claimed in Claim 12. Same thing."

No - its not the same thing, unless claim 12 is the only claim asserted. Since the products obviously do not have stereoscopic headsets I'm pretty confident that claim 12 is not asserted. But my guess is the independent system claims are good candidates to look at.

Nilay - stay away from snide legalish comments about patents, its not flattering to you.

I like claim 21 best - no headset, clearly says simulation of a concert (you know, like having people on stage with you playing instruments and fans, like in GH?). Its not perfect - by a long shot - but the problems it has are not the slings and arrows I've seen thrown at it so far.

[Virtuous @ Mar 21st 2008 9:20PM]

Need anymore evidence our patent system is dysfunctional? It's become an utter joke.

[Andy @ Mar 21st 2008 9:22PM]

I've played guitar for several years, and have always figured I'd one day save up and buy a nice Les Paul.

Not any more. I won't reward this type of behavior.