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The patent that stole Christmas

Tateru Nino

As you probably know by now, has filed suit against NCsoft for infringement of one of two key patents that it holds. We talked about those patents and's securing the services of General Patent Corporation for the purposes of enforcement earlier this month.

We can learn a few things from the suit against NCsoft, including (we think) how Patent sees its own position with respect to these claims (they don't seem to think it's as firm as it could be). You might also be wondering about prior art (which is abundant). Well prior art, in and of itself, is simply not enough. Not on its own.

"There is the law as she is writ, and there is the law as she is practiced."

Law is endlessly modified. It is organic. Legislation on the books becomes accreted with a thick coating of rulings and precedents. All those minor and major judgment calls from thoughtful men and women judges who have to decide what the correct course is in a particular case. Season with periodic minor amendments and stir.

All of that adds up. Where once, even the whiff of prior art would be enough to overturn a patent for your shiny new widget, the legislation as practiced these days makes the application of prior art to defeat a patent a much trickier thing indeed.

Having the prior art already in existence is not enough. It must be indexed in the right form, and applied with surgical care. A misstep can invalidate the whole procedure and leave the patent that you wished to dismiss stronger than ever.

So, how strong is's position?

Their patent is pretty core technology, but it is also pretty specific. What they really need is a ruling in their favor. Indeed, the very first thing they are asking for as a remedy is "An order finding that the '690 Patent is valid and enforceable".

That would pretty much seal the game for them, and make it very hard to overturn the patent on any grounds. Once they've got that, they can sue just about every other MMOG maker and win in nice short court cases - or simply go to the settlement table and name their price to allow the MMOG to keep going.

Until they're awarded a win in court, though -- it appears that General Patent Corporation and are a bit less confident about their position.

The suit itself was filed on 24 December. Christmas Eve. Considering the suit constitutes a major threat to NCsoft's business, you can well imagine that the legal and management teams would need to meet urgently. From December 24 to the first days of January are probably the most troublesome time of the year to do so. There is only a limited amount of time for NCsoft to respond, and every day counts. This implies that the patent-holder isn't as confident as it otherwise might be.

It must have been a lousy Christmas for NCsoft execs, though. Either people need to be pulled away from their families and holidays or the company loses valuable time to respond.

The plaintiffs are gunning for all the NCsoft MMOG titles. They also claim that discovery will prove that infringement was wilful. Wilful infringement attracts treble damages. Wilful infringement of a patent is when you're infringing on the claims of a patent, and you were aware of it -- if you weren't aware of the patent, only ordinary damages apply.

This is why the majority of software developers discourage their employees from consulting the patent system. If they infringe accidentally, the financial risks are far lower -- and it is pretty much impossible to write any software without infringing on multiple patents.

Why NCsoft?

NCsoft is exposed right now. To make an analogy, NCsoft looks like the weakest member of the herd, and one that can be cut away from the pack and brought down. NCsoft isn't notorious for having a dark army of undead lawyers, and recent quarterly results (plus the closing of Tabula Rasa) has left NCsoft looking like a weak and vulnerable target to an outside observer.

The plaintiffs win if NCsoft makes a blunder, or can't afford to follow the case through, and the plaintiffs get their remedies -- and they win big. They can start knocking on doors, and naming their terms. For the plaintiffs a weak or clumsy (but not destitute) opponent is ideal.

Lawyers representing have indicated that other targets for litigation are being lined up. NCsoft is just the first.

Can win this? It's certainly possible. We wouldn't put money either way on the fight. Not today, anyway. The patent claim itself is sort of the MMOG/Virtual-Environment version of "Using sight as a method of visually identifying objects" -- that is, it is a fundamental mechanism for which there don't seem to be any practical alternative methods.

We are looking forward to NCsoft's response with keen interest.

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