Bama Gaming LLC v. Infinity Ward Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Bama Gaming, LLC (Alabama)
  • Defendant: Infinity Ward, Inc.; Activision Publishing, Inc.; Activision Blizzard, Inc. (Delaware)
  • Plaintiff’s Counsel: DEVLIN LAW FIRM LLC
• Case Identification: 1:17-cv-00764, D. Del., 06/15/2017
• Venue Allegations: Plaintiff alleges venue is proper in the District of Delaware because all Defendant entities are incorporated in Delaware and conduct business in the district.
• Core Dispute: Plaintiff alleges that Defendants’ interactive musical video games, including titles from the Guitar Hero, DJ Hero, and Band Hero franchises, infringe five U.S. patents related to systems and methods for the electronic display, communication, and performance of musical compositions.
• Technical Context: The technology at issue pertains to computerized systems for musical performance and instruction, including features for synchronized multiplayer performance, real-time feedback, and networked communication of musical data.
• Key Procedural History: The complaint does not mention any prior litigation, Inter Partes Review (IPR) proceedings, or licensing history related to the patents-in-suit.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 6,084,168 - "Musical Compositions Communication System, Architecture and Methodology"

• Patent Identification: U.S. Patent No. 6,084,168, titled "Musical Compositions Communication System, Architecture and Methodology," issued July 4, 2000 (’168 Patent). (Compl. ¶15).

The Invention Explained

• Problem Addressed: The patent addresses technical challenges related to enabling multiple performers, potentially in different locations, to engage in a synchronized musical performance based on a common musical score. (Compl. ¶16). This aimed to overcome the logistical inefficiencies of distributing, editing, and performing from paper-based sheet music. (’960 Patent, col. 1:11-54).
• The Patented Solution: The invention is a "musical workstation system" that provides for the electronic display of a musical composition, receives input from a user's performance, compares the user's performance to the composition data, and modifies the display to provide feedback. (’168 Patent, Abstract; Compl. ¶23). An exemplary embodiment depicts a processor subsystem connected to storage, a display, and various user inputs, including musical instruments, forming a comprehensive electronic performance environment. (Compl. ¶21; ’168 Patent, Fig. 5).
• Technical Importance: The technology was presented as an improvement in the field of electronically displayed musical performances, moving beyond static displays to interactive and networked systems. (Compl. ¶19).

Key Claims at a Glance

• The complaint asserts independent claims 1, 9, 21, 24, 31, 37, 46, 48, 49, 50, and 53, among others. (Compl. ¶15).
• Independent Claim 1 recites a musical workstation system comprising:
  • a displayed video presentation of a selected musical composition
  • storage means for storing composition data
  • display means for displaying the video presentation
  • input means for providing user performance data
  • analysis means for comparing user performance data to composition data
  • control means for modifying the display responsive to the analysis
• Independent Claim 9 recites a music display presentation system comprising:
  • a workstation apparatus with storage means, display means, and means for progressing the display
  • a mode controller for managing operation in a selected automated operational mode
  • wherein the automated mode includes at least one of marching band mode, conductor mode, orchestra mode, and networked virtual performance mode

U.S. Patent No. 5,728,960 - "Multi-Dimensional Transformation Systems and Display Communication Architecture for Musical Compositions"

• Patent Identification: U.S. Patent No. 5,728,960, titled "Multi-Dimensional Transformation Systems and Display Communication Architecture for Musical Compositions," issued March 17, 1998 (’960 Patent). (Compl. ¶95).

The Invention Explained

• Problem Addressed: The patent seeks to solve logistical and analytical problems for musicians learning and performing compositions, particularly simultaneously and at different locations. (Compl. ¶96). The background section details the cumbersome nature of composing, transposing, editing, and distributing paper sheet music for orchestras. (’960 Patent, col. 1:11-54).
• The Patented Solution: The invention is a networked musical display system that receives an original musical composition, stores it, and allows a controller to alter it into a "derivative musical composition" based on a selected operating mode. This derivative composition is then displayed on a plurality of subsystems, enabling networked performance and analytical feedback. (’960 Patent, Abstract; Compl. ¶102).
• Technical Importance: The invention enabled multiple users at various locations to perform together and receive analytical feedback, moving beyond simple performance communication over a network. (Compl. ¶96).

Key Claims at a Glance

• The complaint asserts independent claims 1, 20, 24, 39, 50, and 60, among others. (Compl. ¶101).
• Independent Claim 1 recites a musical display networked system comprising:
  • means for receiving an original musical composition
  • a memory for selectively storing the composition
  • selection means for determining a selected operating mode
  • a controller responsive to the selection means for altering the composition to produce a derivative musical composition
  • a plurality of display subsystems for displaying the derivative musical composition

Multi-Patent Capsule: U.S. Patent No. 7,098,392

• Patent Identification: U.S. Patent No. 7,098,392, "Electronic Image Visualization System and Communication Methodologies," issued August 26, 2006 (’392 Patent). (Compl. ¶185).
• Technology Synopsis: The patent describes a method for providing a video display responsive to image data stored in a database. The method involves defining vertical ("first") and horizontal ("second") slices of the image data, grouping them into logical sections, mapping them, and storing the mapping for retrieval and display. (Compl. ¶192, ¶194).
• Asserted Claims: Claims 1-5, 19-23, 33-38, 45-46, and 48-49. (Compl. ¶191).
• Accused Features: The accused features are the systems within the games that generate the visual presentation of scrolling musical data by processing, mapping, and displaying image data from a database. (Compl. ¶193).

Multi-Patent Capsule: U.S. Patent No. 7,074,999

• Patent Identification: U.S. Patent No. 7,074,999, "Electronic Image Visualization System and Management and Communication Methodologies," issued July 11, 2006 (’999 Patent). (Compl. ¶233).
• Technology Synopsis: The technology is a musical image display system comprising a processing subsystem and a composition database. The system generates an image database, maps and sections the image data, and allows a user to select portions of the data for "bookmarking," associating an ID with a specific location for selective retrieval and display. (Compl. ¶240).
• Asserted Claims: Claims 16 and 31-32. (Compl. ¶239).
• Accused Features: The accused features are the game systems that generate, map, and section image data and provide for user input to navigate to specific, defined locations within the musical data. (Compl. ¶241, ¶243).

Multi-Patent Capsule: U.S. Patent No. 7,612,278

• Patent Identification: U.S. Patent No. 7,612,278, "System and Methodology for Image and Overlaid Annotation Display, Management and Communication," issued November 3, 2009 (’278 Patent). (Compl. ¶247).
• Technology Synopsis: This patent claims a system with a database to store a video presentation of a composition. A subsystem is configured to select, reorder, and add user-input annotations to segments of the video presentation, which are then overlaid on the display. (Compl. ¶254).
• Asserted Claims: Claims 1, 4, 6-7, 9, 11-16, and 19-21. (Compl. ¶253).
• Accused Features: The accused features are the game systems that store a video presentation of a composition and include logic for selecting, reordering, and displaying segments of that composition to the user for performance. (Compl. ¶255).

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are "interactive musical video games including Guitar Hero 5, Guitar Hero Live, DJ Hero, DJ Hero 2, and Band Hero," which are used with gaming systems such as the Nintendo Wii, Microsoft Xbox, and Sony PlayStation. (Compl. ¶22).

Functionality and Market Context

• The accused games provide a video display of a selected musical composition, typically in the form of a scrolling "note highway," which prompts user performance on a specialized controller (e.g., a plastic guitar or turntable). (Compl. ¶24). The system analyzes the user's inputs for timing and accuracy, compares this performance data to the stored composition data, and provides audiovisual feedback. (Compl. ¶24). The complaint also alleges that the games' multiplayer features, which allow users to perform together over a network, practice claims related to networked workstations. (Compl. ¶36). The complaint does not contain specific allegations regarding the products' market positioning.

IV. Analysis of Infringement Allegations

’168 Patent Infringement Allegations

• Identified Points of Contention:
  • Scope Questions: Claim 1 is written in means-plus-function format under 35 U.S.C. § 112(f). The scope of terms like "storage means" and "analysis means" will be limited to the corresponding structures disclosed in the ’168 Patent specification (e.g., the processor and memory of a "local computer subsystem" shown in Fig. 5) and their equivalents. A central question may be whether the general-purpose processors and software architecture of modern game consoles are structurally equivalent to the specific hardware configurations disclosed in the patent from the late 1990s.
  • Technical Questions: A potential issue is whether the data format for the "note highway" in the accused games constitutes "composition data representing the selected musical composition" as understood in the patent, which primarily depicts traditional musical notation.

’960 Patent Infringement Allegations

• Identified Points of Contention:
  • Scope Questions: The infringement theory for this claim appears to rely heavily on the multiplayer functionality of the accused games to satisfy the "plurality of display subsystems" limitation. A question for the court will be whether single-player modes of operation can infringe this claim.
  • Technical Questions: The dispute may focus on the meaning of "altering" a composition to create a "derivative musical composition." A question is whether selecting a pre-authored difficulty track or instrument part in a game is equivalent to the patent's description of actively transposing or editing a musical score.

V. Key Claim Terms for Construction

• The Term: "musical composition" (’168 Patent, Claim 1; ’960 Patent, Claim 1)

  • Context and Importance: This term is fundamental to nearly all asserted claims. Its construction will be critical in determining whether the proprietary data formats used to represent the "note highways" in the accused video games fall within the scope of what the patents protect. Practitioners may focus on this term because the patents' disclosures heavily feature traditional musical notation, whereas the accused products use a graphical, game-oriented representation.
  • Intrinsic Evidence for a Broader Interpretation: The specification of the parent ’960 Patent refers to storing information in "digital notation format" and also mentions processing inputs from MIDI, which is a data protocol, not a visual notation. (’960 Patent, col. 4:48-49, col. 5:3-8). This may support an interpretation that covers any digital representation of musical performance data.
  • Evidence for a Narrower Interpretation: The figures in both patents consistently depict traditional musical staffs, notes, and clefs. (e.g., ’168 Patent, Fig. 3; ’960 Patent, Fig. 1A). The background explicitly discusses the problems of "sheet music" and "scores," which may suggest the invention was intended to be an electronic replacement for traditional paper-based notation. (’960 Patent, col. 1:11-54).

• The Term: "analysis means" / "control means" (’168 Patent, Claim 1)

  • Context and Importance: These are means-plus-function limitations, so their scope is defined by the corresponding structure in the specification. The dispute will likely concern whether the game console's general-purpose CPU running game-specific software is structurally equivalent to the "processor subsystem" disclosed in the patent.
  • Intrinsic Evidence for a Broader Interpretation: The specification describes a "processor subsystem" and a "local computer subsystem" in general terms, which could be argued to encompass the CPU and software architecture of a modern game console performing the claimed functions. (’168 Patent, Fig. 5, items 550, 580).
  • Evidence for a Narrower Interpretation: The detailed description links these means to specific functions like comparing performance for "pitch, timing, volume, and tempo" and critiquing physical movements. (’960 Patent, col. 4:26-34). A party could argue that this disclosure requires a more sophisticated musical analysis than the binary hit-or-miss timing check performed by the accused games, thereby narrowing the scope of the corresponding structure.

VI. Other Allegations

• Indirect Infringement: The complaint alleges both induced and contributory infringement. Inducement is alleged based on Defendants' advertising and distribution of the games along with "instruction materials, training, and services" that instruct users on how to use the products in an infringing manner. (Compl. ¶285). Contributory infringement is alleged on the basis that the accused games are material components "especially made or adapted for use in an infringement" and are not staple articles of commerce suitable for substantial non-infringing use. (Compl. ¶286).
• Willful Infringement: Willfulness is alleged based on knowledge obtained "at least as early as the filing of this complaint." (Compl. ¶283). The allegations of continued inducement and infringement after receiving notice of the patents form the basis of the willfulness claim. (Compl. ¶284).

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of definitional scope: can the term "musical composition," which is rooted in the patents' context of traditional sheet music and scoring, be construed to cover the proprietary, graphical "note highway" data format used in the accused rhythm-based video games?
• A key legal and technical question will be one of structural equivalence: for the numerous means-plus-function claim terms, is the general-purpose CPU and software architecture of a modern game console a structural equivalent to the specific "processor subsystems" and "local computer subsystems" disclosed in the patents for performing functions like comparing performance data and modifying a display?
• A likely threshold question for the court will be one of patent eligibility: are the claims, which are directed to systems and methods for processing, communicating, and displaying musical data, patent-eligible under 35 U.S.C. § 101, or are they directed to abstract ideas implemented on generic computer components? The complaint's pre-emptive arguments against abstractness suggest this will be a central battleground. (Compl. ¶¶17-20).