Activision's Guitar Hero 'Patent Pending' ... perhaps not

Buy Guitar Hero and you might notice amongst the packaging and paperwork that you get with it that Activision claim that the product is "patent pending" ... but Patent Arcade have uncovered information that might indicate that this statement is false.

Buy Guitar Hero and you might notice amongst the packaging and paperwork that you get with it that Activision claim that the product is "patent pending" ... but Patent Arcade have uncovered information that might indicate that this statement is false.

... on February 12, 2010, Patent Compliance Group, Inc. ("PCG") filed a qui tam action against Activision, alleging that Activision has falsely marked many of its video games including Guitar Hero 5, Band Hero, DJ Hero and Guitar Hero Smash Hits (collectively "Activision video game products") as patented or patent pending.

The PCG claim that Activision has violated 35 U.S.C. 292(a):

Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article the word "patent" or any word or number importing the same is patented, for the purpose of deceiving the public; or Whoever marks upon, or affixes to, or uses in advertising in connection with any article the words "patent applied for," "patent pending," or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public - Shall be fined not more than $500 for every such offense.

Specifically, the false patent claims relate to:

  • Activision's Guitar Hero 5, DJ Hero, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 5,739,457 ("'457 Patent").
  • Guitar Hero 5, DJ Hero, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 6,018,121 ("'121 Patent").
  • Guitar Hero 5, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 6,252,153 ("'153 Patent").
  • Guitar Hero 5, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 6,268,557 ("'557 Patent").
  • Guitar Hero 5, DJ Hero, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 6,369,313 ("'313 Patent").
  • Guitar Hero 5, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 6,379,244 ("'244 Patent").
  • Guitar Hero 5, DJ Hero, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 6,429,863 ("'863 Patent").
  • Guitar Hero 5, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 6,758,753 ("'753 Patent").
  • Guitar Hero 5, Band Hero and Guitar Hero Smash Hits video games are falsely marked with U.S. Patent No. 6,769,689 ("'689 Patent").
  • Guitar Hero 5 and Guitar Hero Smash Hits video games are falsely marked with U.S. Design Patent No. D441,403 ("'403 Patent").
  • Guitar Hero 5, DJ Hero, Band Hero and Guitar Hero Smash Hits video games are falsely marked as "patent pending" or "patent applied for."

PCG claims that the scopes of the patents which Activision's video game products are marked with does not cover the methods or systems of the actual products.

Questions remain over who the PCG is, and what its motives might be, but at this time it doesn't really matter. Also, Activision isn't the only company that the PCG has sued this month. Others are Timex, Brunswick and Wright Medical Technology.

Note: Qui tam action is a "writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed."

Given the popularity of Guitar Hero, this could be expensive for Activision if it is found guilty.

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