Gibson loses Guitar Hero patent lawsuit, gets booed off stage

Well, we can't say we didn't see this one coming -- the US District Court for the Central District of California just ruled that Guitar Hero doesn't infringe Gibson's goofy patent on "simulating a musical performance." Just as we thought, the case more or less turned on whether Guitar Hero controllers are actually "musical instruments," and not surprisingly, the court said they're not -- it called them "toys that represent other items." What's more, the court also found that Gibson's patent only applies to devices which output analog audio signals and not MIDI signals or other types of control signals, so it's looking like other rhythm game developers are in the clear for now. We're guessing this also means Gibson's similar lawsuit against Harmonix for Rock Band is on hold while the company decide whether or not to appeal -- let's hope it decides this nonsense isn't worth it.

[Thanks, Matt; warning, PDF read link]

[Idlemind @ Mar 2nd 2009 12:54PM]

Cool....

Now someone find a way for Boxee to sue the networks for pulling the rug from under them....

[From My Cube @ Mar 2nd 2009 1:03PM]

wrong thread, but i do agree with your thoughts

[Idlemind @ Mar 2nd 2009 1:05PM]

well I like to lump all my silly tech legal happenings in one pile

[bandigolo @ Mar 2nd 2009 1:04PM]

Gibson needs to worry more about Fender and less about plastic kindergarten toys.

[Frankfurter @ Mar 2nd 2009 1:26PM]

Yeahhhhh......don't think Gibson needs to worry about Fender. Unless cheap Mexican Les Paul's are on the horizon

[bandigolo @ Mar 2nd 2009 4:31PM]

Interesting you would say that. You know, I went to this Jimi Hendrix Experience tribute concert last fall, featuring the likes of Mitch Mitchell, Billy Cox, Buddy Guy, Kenny Wayne Shepherd, Robert Randolph, etc. It was sponsored to the teeth by Gibson... swag everywhere. But everybody played Fenders. Everybody. Not a single Gibson in sight (on stage).

Now, I realize that Hendrix played Fenders; thus, so would his tributeers. But it doesn't exactly send a positive message about your product when the show you sponsor utterly neglects your products and universally prefers those of your biggest competitor.

Don't get me wrong... I enjoy my SG as much - perhaps more - than my Tele. But don't be silly and allege that one clearly outclasses the other, 'cause that's just not true.

[Smart People Play Tuba @ Mar 2nd 2009 1:10PM]

What about Sousaphone Hero? Are they safe too?

http://www.theonion.com/content/news/activision_reports_sluggish_sales

[tcc3 @ Mar 2nd 2009 1:16PM]

Way to kill the goose that lays golden eggs. How much was Gibson getting in licensing for having their guitars in game? Good job assholes.

[Fill @ Mar 2nd 2009 1:27PM]

Exactly. I wouldn't be surprised if the latest Guitar Hero had licensing from a different manufacturer...*crosses fingers for ESP or Ibanez*

[Clyde Berry @ Mar 2nd 2009 1:40PM]

What the hell Gibson? Didn't you like your guitar becoming a household name by including it with one of the biggest games of last year? You just had to be a bunch of patent trolls.Talk about biting the hand that feeds... Can't wait till the next Guitar Hero with Tele style or Warlock style guitars.

[Gibson @ Mar 2nd 2009 4:05PM]

I love MONEEEEEEYYYY!!

:runs wildly into the sunset:

[mugupo @ Mar 2nd 2009 1:46PM]

Guitar Hero is getting less popular by each title, due to too many same game engine just song difference. Only Rock band or Guitar Hero might had a chance for several more hits that's all.

[sweet greggo @ Mar 2nd 2009 2:07PM]

mashing buttons in sync with a pre-recorded song does not = musical instrument. makes you wonder how people get so fucking stupid

[Neoprimal @ Mar 2nd 2009 2:24PM]

So now here's a question. Assuming that Guitar Hero and Rockband don't have 'instrumentation' patents....how difficult would it be for Gibson to 'ammend' to their own patent, or change it in some way to include wording that would suddenly cause these companies to be infringing? Is it possible?

[Brandon @ Mar 2nd 2009 2:52PM]

I don't think you can change your patent wordings. Otherwise, I would patent "Stuff that does something" and later change wordings appropriately.

[bandigolo @ Mar 2nd 2009 4:32PM]

lol.

well said.

[Eric @ Mar 2nd 2009 5:50PM]

Even if they could change the patent, the companies responsible for Guitar Hero and Rock Band can just cite the sales of their game, which were all before Gibson patented what they're supposedly infringing.

[Mikey @ Mar 5th 2009 3:03PM]

It is possible, but extremely unlikely. First, Gibson can file for a reissue which would allow it to amend the claims and attempt to sweep in Guitar Hero and Rock Band. But, they couldn't just broaden the claim term regarding "instruments" to include all controllers, because you can only file for a broadening reissue within two years of issuance (here Nov. 1999). Therefore, Gibson would have to narrow some other aspect of the patent... and that narrowed aspect would also have to be infringed by Guitar Hero and Rock Band. In any even, the attempt to amend the claims would take at least a year, and probably more before it was complete.

Second, unless Gibson wins the appeal of this case (in which case it doesn't need to amend the claims to be broader), its case against Guitar Hero is done. There is a legal doctrine called claim preclusion that forbids filing the same legal claim against the same party more after you've already lost against them previously. In other words, you only get one bite at the apple, so make it count. No matter how much the patent claims are changed, Gibson had its chance and lost against Guitar Hero. As for its suit against Harmonix for Rock Band, there is a similar doctrine called "issue preclusion" which can prevent a party from asserting the same issue in two separate actions when it lost the first. Here, the issue is the claim interpretation of Gibson's patent. Although whether issue preclusion will apply in a case is more complex, from what I remember since the last time I researched the issue, Gibson would most likely be precluded from arguing a claim interpretation different from that found by the court here (i.e. video game guitars are not musical instruments), in which case it is unlikely that Rock Band controllers infringe.

[Electromodo @ Mar 2nd 2009 2:29PM]

Oh boy do I hate those patent wars!

[tb @ Mar 2nd 2009 3:17PM]

how can gibson patent a technology roland has invented in the 70 and used/marketted since then (hex pickup, GK equipped guitars)

[bandigolo @ Mar 2nd 2009 4:34PM]

only one of two reasons.

either

(a) the patent examiner was a doofus

or

(b) you didn't read and/or understand the patented technology well enough to make that comment

[Travis May @ Mar 2nd 2009 8:19PM]

The controller has been modded by David Crowder Band and they use it for one of their songs: http://www.youtube.com/watch?v=dhNCn9DuIcM&f and http://www.youtube.com/watch?v=NnUpx2Jg_u0

[Derek @ Mar 2nd 2009 10:21PM]

I really think Guitar Hero shot themselves in the foot with World Tour, terrible controllers, mostly in the drums and just not as clean as Rock Band.

[betelgeus @ Mar 3rd 2009 7:12AM]

am i missing something? what is the patent breach,as the controllers are clearly labelled gibson so they are getting paid.

[Mikey @ Mar 5th 2009 3:05PM]

I've wondered the same thing ever since Gibson sued. The only thing I can think is Activision agreed to pay one licensing fee for the use of Gibson guitars (which is really a trademark/trade dress license) and the license explicitly did not license any patents Gibson had which might be infringed.

[Alex @ Mar 9th 2009 1:10PM]

Remember when Gibson sued PRS, and failed. I hate Gibson.