DCT

2:21-cv-00799

Utherverse Gaming LLC v. Epic Games Inc

I. Executive Summary and Procedural Information

Parties & Counsel:
- Plaintiff: Utherverse Gaming LLC (Delaware)
- Defendant: Epic Games, Inc. (Maryland)
- Plaintiff’s Counsel: Polsinelli P.C.
Case Identification: 2:21-cv-00799, W.D. Wash., 06/11/2021
Venue Allegations: Plaintiff alleges venue is proper because Defendant Epic Games, Inc. has maintained a regular and established place of business in the Western District of Washington since at least 2012, including offices in the Seattle and Bellevue areas involved in the development of its software.
Core Dispute: Plaintiff alleges that Defendant’s online game Fortnite infringes four patents related to technologies for managing massively multi-user virtual environments and for recording and replaying shared virtual experiences.
Technical Context: The dispute centers on foundational technology for creating large-scale, shared social spaces in virtual worlds, often referred to as the "metaverse," by overcoming technical limitations in processing, bandwidth, and spatial capacity.
Key Procedural History: The complaint references the prosecution history of the asserted patents, noting that the patent examiner considered prior art related to virtual world instancing and avatar population limits before allowing the claims, a point that may become relevant to future arguments over claim scope and validity.

Case Timeline

Date	Event
2007-03-07	Priority Date for ’071, ’954, and ’157 Patents
2012-09-25	U.S. Patent No. 8,276,071 Issued
2014-08-12	Priority Date for ’605 Patent
2014-08-19	U.S. Patent No. 8,812,954 Issued
2015-09-01	U.S. Patent No. 9,123,157 Issued
2017-01-01	Fortnite originally released
2017-08-08	U.S. Patent No. 9,724,605 Issued
2021-06-11	Complaint Filed

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

U.S. Patent No. 8,276,071 - “Multi-Instance, Multi-User Animation Platforms”

The Invention Explained

Problem Addressed: The patent’s background section describes how conventional virtual reality universes (VRUs) are constrained by limitations on computer processing speed, network bandwidth, and the geometric "space" of the simulated environment, which collectively limit the number of users who can participate in a shared virtual experience simultaneously (’071 Patent, col. 1:50-57, col. 2:22-23). These limitations can prevent the "critical mass" needed for large-scale virtual events (Compl. ¶21).
The Patented Solution: The invention proposes a method for dynamically creating and managing multiple duplicate instances, referred to as “dimensions,” of a virtual space (’071 Patent, col. 3:10-13). The system distributes user avatars among these parallel dimensions to prevent any single instance from becoming overpopulated (’071 Patent, col. 14:1-5). The specification also describes embodiments where these dimensions are linked to a “common space” (e.g., a virtual stage) or allow for inter-dimensional observation and interaction, thereby creating a cohesive experience for a massive audience (’071 Patent, col. 5:24-35; Fig. 5).
Technical Importance: This architecture provides a technical framework for scaling virtual worlds to host mass-audience events, a foundational challenge in developing large-scale, persistent social platforms or a "metaverse" (Compl. ¶¶ 2-3).

Key Claims at a Glance

The complaint asserts Claim 8, which depends on independent Claim 1 (Compl. ¶¶68-69).
Essential elements of independent Claim 1 include:
- A method for managing a multi-instance, multi-user animation process, comprising:
- modeling, using a computer, a plurality of parallel dimensions in a computer memory, each of the plurality of parallel dimensions being a replica of a modeled three dimensional space configured for modeling occupancy and movement of multiple avatars;
- assigning ones of a plurality of avatars within the computer memory so that each of the plurality of avatars populates a respective one of the parallel dimensions and each of the plurality of parallel dimensions is populated by a unique subset of the plurality of avatars, so as to prevent over-population of any one of the parallel dimensions by avatars; and
- animating ones of the plurality of avatars populating different ones of the parallel dimensions in response to input from respective corresponding ones of a plurality of clients to provide virtual-reality data.
The complaint does not explicitly reserve the right to assert dependent claims beyond Claim 8.

U.S. Patent No. 8,812,954 - “Multi-Instance, Multi-User Virtual Reality Spaces”

The Invention Explained

Problem Addressed: As part of the same patent family as the ’071 Patent, this patent addresses the same technical problems of processing, bandwidth, and spatial constraints that limit the scale of multi-user virtual environments (’954 Patent, col. 2:25-36).
The Patented Solution: The patent describes a similar solution based on multi-instance "dimensions." The independent claim of this patent adds a specific method for dynamic scaling: generating an additional parallel instance based on detecting an increase in the number of client devices requesting access (’954 Patent, col. 18:54-61). This allows the system to automatically expand capacity in response to real-time user demand for a popular virtual event (’954 Patent, Fig. 8).
Technical Importance: This claimed method for on-demand instance creation provides a mechanism for virtual world platforms to automatically scale resources to handle unpredictable surges in user traffic, such as during a live event (Compl. ¶32).

Key Claims at a Glance

The complaint asserts Claim 4, which depends on independent Claim 1 (Compl. ¶¶88-89).
Essential elements of independent Claim 1 include:
- A method, comprising:
- modeling, in a computer memory, multiple parallel instances of a multi-dimensional virtual reality space, each of the plurality of parallel instances replicating the multi-dimensional virtual reality space;
- assigning ones of a plurality of modeled multi-dimensional avatars...so that each of the plurality of parallel instances is populated by a unique subset of the plurality of avatars, wherein the assigning limits a total number of the plurality of avatars in each of the unique subsets; and
- generating an additional parallel instance of the multi-dimensional virtual reality space, based on detecting an increase in a number of a plurality of client devices providing input to the modeling for controlling ones of the plurality of modeled multi-dimensional avatars.
The complaint does not explicitly reserve the right to assert dependent claims beyond Claim 4.

U.S. Patent No. 9,123,157 - “Multi-Instance, Multi-User Virtual Reality Spaces”

Technology Synopsis: Belonging to the same family as the ’071 and ’954 patents, this patent also describes a solution to virtual world overcrowding using parallel instances. The asserted claim focuses on the concept of a "common space" that is modeled in relation to the parallel instances so that at least one object within that common space (e.g., a performer on a stage) is visible from viewpoints located inside each of the separate instances (’157 Patent, Abstract; Compl. ¶35).
Asserted Claims: Independent Claim 1 (Compl. ¶107).
Accused Features: The complaint alleges that in Fortnite concert events, the virtual stage and performer’s avatar function as a "common space" visible to all players across all parallel instances (Compl. ¶118).

U.S. Patent No. 9,724,605 - “Method, System and Apparatus of Recording and Playing Back an Experience in a Virtual Worlds System”

Technology Synopsis: This patent describes a method for recording and replaying a virtual world experience. Unlike a simple video, the invention allows users to navigate freely within the recorded scene and interact with other live users who are also participating in the playback (’605 Patent, col. 10:14-29). The asserted claim also includes a step of automatically transporting avatars to a different, new instance of the scene when a maximum capacity threshold is reached in the current one (Compl. ¶44).
Asserted Claims: Claim 2 (dependent on Claim 1) (Compl. ¶123).
Accused Features: The complaint accuses Epic’s repeated broadcasts of pre-recorded events, such as the Travis Scott concert, which it alleges constitute playing back a "recorded experience file." It also accuses Fortnite of transporting avatars to new instances when existing ones become full during these events (Compl. ¶¶129, 136).

III. The Accused Instrumentality

Product Identification

The accused instrumentality is the online video game Fortnite, developed and operated by Epic Games, and specifically the software and systems used to host its large-scale, multi-user virtual events (the "Accused Products") (Compl. ¶¶5, 66).

Functionality and Market Context

The complaint focuses on Fortnite's functionality beyond its "battle royale" gameplay, highlighting its use as a platform for massive social events such as virtual concerts (e.g., by artists Marshmello and Travis Scott) and movie trailer premieres (Compl. ¶¶5, 59, 61, 63). These events are alleged to host millions of concurrent participants (Compl. ¶¶59, 63). The complaint alleges that to manage this scale, Fortnite necessarily spreads participants across multiple parallel "dimensions or instances," with only a small subset of avatars visible to any one player at a time (Compl. ¶¶57, 63, 72). The complaint provides a screenshot from a YouTube video of the Marshmello concert, which it claims shows a virtual venue with only about 100 visible participant avatars despite millions attending live (Compl. ¶72, p. 23). These events are positioned in the complaint as commercially significant, driving user growth and revenue for Epic (Compl. ¶¶6, 47, 65).

IV. Analysis of Infringement Allegations

U.S. Patent No. 8,276,071 Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
modeling, using a computer, a plurality of parallel dimensions in a computer memory, each of the plurality of parallel dimensions being a replica of a modeled three dimensional space...	Epic’s Accused Products model a plurality of parallel dimensions, or separate instances, to accommodate millions of participants in events like the Marshmello concert, with each instance being a replica of the three-dimensional concert venue.	¶70	col. 3:10-13
assigning ones of a plurality of avatars...so that each...is populated by a unique subset of the plurality of avatars, so as to prevent over-population...	For its large-scale events, Fortnite allegedly assigns the millions of participating avatars into unique subsets, with each subset populating a respective parallel dimension, thereby preventing any single instance from being overpopulated. The complaint points to videos showing only tens or ~100 avatars in a given view.	¶¶74, 75	col. 14:1-5
animating ones of the plurality of avatars populating different ones of the parallel dimensions in response to input from respective corresponding ones of a plurality of clients to provide virtual-reality data...	Fortnite participants can allegedly animate their avatars (e.g., by performing a dance emote) in response to their own input, and this animation occurs within their respective parallel dimension. The complaint includes a screenshot of a user selecting an emote from a menu during the concert (Compl. ¶80, p. 26).	¶78	col. 15:3-9
modeling a common space...configured in relation to the plurality of parallel dimensions so that at least one object located inside the common space is visible from viewpoints located inside each of the plurality of parallel dimensions.	The complaint alleges that the virtual stage and the DJ Mello avatar for the Marshmello concert were situated in a common space and visible from each of the parallel dimensions. A screenshot shows the performer avatar on stage from a player's viewpoint (Compl. ¶83, p. 27).	¶82	col. 5:24-29

U.S. Patent No. 8,812,954 Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
modeling, in a computer memory, multiple parallel instances of a multi-dimensional virtual reality space, each of the plurality of parallel instances replicating the multi-dimensional virtual reality space.	Epic’s Accused Products model multiple parallel instances of the concert venue space to accommodate the millions of users attending events like the Marshmello concert.	¶90	col. 3:10-13
assigning ones of a plurality of modeled multi-dimensional avatars...so that each of the plurality of parallel instances is populated by a unique subset...wherein the assigning limits a total number of the plurality of avatars in each of the unique subsets.	Fortnite allegedly assigns avatars to unique subsets within each parallel instance and limits the number of avatars in each, as evidenced by the limited number of avatars visible in any single view of the concert.	¶94	col. 14:1-5
generating an additional parallel instance...based on detecting an increase in a number of a plurality of client devices providing input to the modeling for controlling ones of the plurality of modeled multi-dimensional avatars.	The complaint alleges that Epic's system, which "run[s] on thousands of...AWS instances, which scale up and down with our daily peak of players," generates additional instantiations based on detecting an increase in the number of client devices providing input.	¶98	col. 14:15-19

Identified Points of Contention

Scope Questions: A central question may be whether Fortnite’s use of standard cloud computing infrastructure for server scaling and sharding (e.g., "thousands of...AWS instances") constitutes "modeling...a plurality of parallel dimensions in a computer memory" as contemplated by the patents. The defense may argue that the claims require a more specific, integrated architecture than conventional, independent server instances.
Technical Questions: The allegation that a "common space" is visible from "each of the plurality of parallel instances" will likely be a key factual dispute. It raises the question of what evidence the complaint provides to show that the virtual stage in Fortnite is a single, shared, modeled object linked to all instances, rather than an identical asset that is simply replicated within each separate, independent instance.

V. Key Claim Terms for Construction

For the ’071 and ’954 Patents (MMAP Patents)

The Term: "parallel dimensions"
- Context and Importance: This term is the core of the invention. Its construction will likely determine whether the claims read on modern cloud-based server instancing and sharding architectures, such as those allegedly used by Fortnite. Practitioners may focus on this term because its scope is fundamental to the infringement case.
- Intrinsic Evidence for Interpretation:
  - Evidence for a Broader Interpretation: The specification states that multiple instances "may be referred to herein as 'dimensions'" and describes them as "duplicate instances of a space in a VRU" (’071 Patent, col. 3:12-15). This language may support an interpretation that covers any system that creates copies of a virtual space to manage user load.
  - Evidence for a Narrower Interpretation: The specification describes detailed interactions between dimensions, such as users traveling between them, observing other dimensions, and objects passing through interfaces that separate them (’071 Patent, col. 5:3-9; col. 11:37-43). This may support a narrower construction requiring that "parallel dimensions" be part of an integrated system with such specific relational capabilities, not merely independent server shards.

The Term: "common space"
- Context and Importance: This term is recited in asserted claim 8 of the ’071 Patent and independent claim 1 of the ’157 Patent. The infringement allegation hinges on whether the virtual stage in Fortnite events meets this definition. Its construction is critical for determining if there is a technical match between the accused system and the claims.
- Intrinsic Evidence for Interpretation:
  - Evidence for a Broader Interpretation: The specification describes a "stage area may be defined that is visible and audible in multiple dimensions surrounding the stage area" (’071 Patent, col. 5:26-29). This could be interpreted broadly as any element that appears to be shared across instances from the user's perspective.
  - Evidence for a Narrower Interpretation: The patent describes a specific technical behavior where an object thrown from the common space "may be replicated and appear in each of the surrounding dimensions" as it crosses a boundary (’071 Patent, col. 5:31-35; Fig. 6). This suggests a "common space" is a distinct modeled entity with a defined technical interface to the parallel dimensions, not just an asset that is identically rendered in each separate instance.

VI. Other Allegations

Indirect Infringement: The complaint includes boilerplate allegations of indirect infringement in the headings for each cause of action (Compl. ¶¶68, 88, 107, 123). However, the complaint does not plead specific facts to support the knowledge and intent elements required for either induced or contributory infringement, such as citing user manuals or marketing materials that instruct users on how to perform the infringing methods.
Willful Infringement: The complaint does not contain an explicit allegation of willful infringement.

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

A core issue will be one of definitional scope: can the term "parallel dimensions," which is described in the patent with specific inter-relational features, be construed broadly enough to cover the large-scale, cloud-based server instancing and sharding architecture allegedly used by Fortnite?
A key evidentiary question will be one of technical implementation: does Plaintiff possess evidence that Fortnite's virtual stage is a single, distinct, modeled "common space" technically linked to and visible from all parallel instances, as required by the claims, or is it simply an identical asset replicated within each independent server instance?
A third central question will relate to the nature of the accused activity: does the automated replay of a pre-recorded, choreographed in-game animation, such as the Fortnite Travis Scott concert, constitute the claimed method of "playing back a recorded experience file having been generated by saving an initial scene state and saving subsequent changes"?