NBA 2K, Grand Theft Auto rejects appeal for infringement lawsuit – Sportico.com
The United States Court of Appeals for the Federal Circuit has ruled that multiplayer modes in NBA 2K and Grand Theft Auto do not infringe a tech firm’s patents for broadcast channels used in online communities.
On Monday, a three-judge panel from the Federal Circuit took issue with Acceleration Bay, a Delaware LLC with its main office in California. In court records, Acceleration Bay describes itself as “an incubator for next generation businesses” with a focus on companies that provide “real-time information and content.” Acceleration Bay claims that Take-Two Interactive Software, along with its subsidiaries Rockstar Games and 2K Sports, own and control software that allows players to play NBA 2K and GTA in a manner that infringes Acceleration Bay’s patents. The two games, according to Acceleration Bay attorneys for Kramer Levin Naftalis & Frankel in a legal brief, “use counterfeit networks and technology to connect large numbers of participants to support their popular online multiplayer features.”
To advance this point, Acceleration Bay attorneys point out that NBA 2K “connects up to 100 players to compete in large arenas, which can feature 10 simultaneous five-on-five basketball games.” Take-Two customers, according to additional evidence, “can only join a multiplayer game session when they use Take-Two’s software on their PCs and consoles to connect to Take-Two’s matchmaking servers.”
Take-Two argues that Acceleration’s counterfeit theory does not hold up. One main reason: Take-Two does not manufacture or sell Sony PlayStation, Microsoft Xbox, and personal computers used by gamers. The publisher designs and markets only games used on equipment manufactured by other companies. Take-Two’s attorney, Michael Tomasulo of Winston & Strawn, pointed out in a brief that NBA 2K and GTA “consist entirely of software code that can only work if installed and run on hardware that Take-Two. Two does not provide “.
In this sense, Tomasulo observed that “once a customer purchases either game, the customer has to install it on a game console or personal computer to play the game.” It is then “entirely up to the customer to play the game or not”. This depiction suggests that Take-Two is not part of a process involving the computer networks, broadcast channels, and hardware components of other companies.
Last year, Justice Richard Andrews of the Delaware Federal District Court agreed with Tomasulo’s reasoning. He pointed out that Take-Two “makes software, not computer networks or broadcast channels,” and that “customers use their own hardware, such as an Xbox or personal computer, to locate the call port of a portal computer ”. Under a patent law precedent, the judge noted that “if a client, rather than an accused infringer, takes the last step in putting the system together, then the accused infringer has not infringed.”
The Federal Circuit, in an opinion of Judge Jimmie Reyna, concurred with this opinion.
“The customer, not Take-Two,” Judge Reyna wrote, “completes the system by providing the hardware component and installing the client software.” He added that even if the code for NBA 2K and GTA controls or instructs the PlayStation and Xbox processors, this circumstance would not meet the necessary elements of infringement. Take-Two still would not have manufactured the material. In addition, Judge Reyna held that the other infringement claims filed by Acceleration Bay were moot.
In separate but similar lawsuits, Acceleration Bay is suing Electronic Arts and Activision Blizzard for infringement. In question, NHL, FIFA, PGA Tour, Call of Duty and other popular games offering online multiplayer modes. The lawsuits are in the same jurisdiction and will be governed by the Federal Circuit opinion in the Take-Two case.
The GTA and NBA 2K series are among the highest grossing video game series. According to Statistical, the GTA series has sold 350 million units worldwide while NBA 2K has sold 112 million units.