Activision sued for 'false patent marking' (and what that means)

Activision is being sued by the Patent Compliance Group for "false patent marking." Don't walk away! It's not that complex, we promise. What it basically means is that this private group of patent police is trying to ding Activision on patents it has on products that are beyond the scope of what it's producing. The reason for the lawsuit, according to the PCG, is that "false patent marking is a serious problem. Acts of false marking deter innovation and stifle competition in the marketplace. If an article that is within the public domain is falsely marked, potential competitors may be dissuaded from entering the same market."

LGJ columnist (and lawyer) Mark Methenitis explains, "Some claims may have some merit like the '753 patent, which is basically for a DDR pad, which wouldn't necessarily apply to Guitar Hero; or the '689 patent, which is for the DJ Hero turn table which does not work with Guitar Hero 5 or Band Hero. To me, it looks like the shotgun approach: hit everything and hope something sticks." Check out Methenitis' full response to us after the break.

PCG is seeking $500 for each of Activision's violations, which is set by statute. As Gray on Claims notes, Activision isn't the only company caught in the crosshairs of the "patent police." What these groups are attempting to do is keep companies (like Activision!) from putting a patent on ideas or concepts that aren't in development.

PDF -- Patent Compliance Group v. Activsion
Source -- Patent Marking Police out in full force

[Via Edge, THR]
Mark Methenitis' full response:

"The statute in question is one that actually penalizes false marking that a product is patented or patent pending. The idea is that those false markings might deter someone from trying to create something new in that area. Here's where this gets a little unusual. Many of the patents (in reading through the claim as alleged in the lawsuits) seem to be for arcade versions of these games, whereas the markings appear on the home version. I think there would be a substantive questions as to whether that distinction is valid as raised in these suits. Some of the later patents are much harder to follow (the '153, '244, '863, patents), but it seems to me that they apply to the games in question. Some claims may have some merit like the '753 patent, which is basically for a DDR pad, which wouldn't necessarily apply to Guitar Hero; or the '689 patent, which is for the DJ Hero turn table which does not work with Guitar Hero 5 or Band Hero. To me, it looks like the shotgun approach: hit everything and hope something sticks.

Equally interesting is the 'Patent Compliance Group' seems to be a private group that has appointed themselves the 'patent marking police' and (along with others like them) have seen a huge uptick in marking suits since the start of 2010. And PCG isn't just suing the video game industry."

This article was originally published on Joystiq.