Patent infringement - It's on like Donkey Kong: Nintendo sued (again)

Computer game giant Nintendo Co., Ltd (Nintendo), the creator of Super Mario, Donkey Kong, and Pokémon (to name a few), is being sued for patent infringement.

Gamevice Inc. (Gamevice), a manufacturer of gaming accessories, alleges that Nintendo’s newest gaming console the “Switch” infringes Gamevice’s U.S. Patent No. 9,126,119 (Patent 119).  Infringement proceedings were commended in the United States District Court for the Central District of California on 9 August 2017.

Nintendo is no stranger to intellectual property lawsuits, having famously defeated Universal Studios in 1984 over a falling out between King Kong and Donkey Kong.1  As the Switch is Nintendo’s most important product currently on store shelves, Gamevice’s patent claim is likely to be vigorously defended.

Patents

Inventions are the subject of patent protection.  If an invention meets the criteria required pursuant to the Patents Act 1990 (Cth), it is eligible to receive patent protection.  A patent grants its owner a monopoly to commercially exploit the invention for 20 years.2

If someone else uses the invention without authority, infringement proceedings can be brought.3  Available remedies include damages or account of profits, and injunctive relief.4

Patent 119 is entitled “Combination Computing Device and Game Controller with Flexible Bridge Section”.  In simple terms, Gamevice’s patent relates to controllers that clip on to the edge of tablets and smartphones to eliminate reliance on touch controls and provide a more traditional gaming experience.  Gamevice created two products, the “Wikipad” and the “Gamevice”, both of which embodied the claims in Patent 119.

The Nintendo Switch

On 20 October 2016, Nintendo debuted the Switch to the world.  The Switch, which has since become a global success, features two controller accessories named “Joy-Cons” that attach to each side of the Switch.  When the Joy-Cons are attached to the Switch, the Switch, by way of its inbuilt screen, becomes a portable gaming device, operating in a similar way to the “Wikipad” and the “Gamevice”.

Gamevice allege that the Switch and Joy-Con controllers embody the claims of Patent 119, including the claim for “an input device attached to and in electronic communication with the communication port”.

Gamevice seeks damages, as well as an injunction to prevent Nintendo continuing to sell the Switch.  If injunctive relief is granted, the ramifications could be catastrophic for Nintendo leading into the holiday season.

Lavan comment

When bringing a product to market, it is incumbent on its creator to conduct the necessary checks of patent, design, and trade mark registers to ensure there are no conflicts.  Where intellectual property is infringed, and the infringing product is already in the market, injunctive relief and damages can spell game over for businesses.

If you require assistance to check for potential intellectual property conflicts, or wish to enforce your own intellectual property rights against an infringing party, do not hesitate to contact Iain Freeman.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.