A (bigger) piece of the pie

The Gibson Guitar Company makes guitars; very good guitars. Activision makes computer games; very good computer games. So, why is Gibson suing Activision? What do they have in common? Well, that’s a long story; a very long, complicated story.

Guitar Hero is a computer software program that simulates playing guitar in a concert setting. It’s a very popular game and the people producing and selling it are making lots of money. The company currently, making all the money is Activision, who have made over a billion dollars since acquiring rights to the game.

Activision believed that Guitar Hero would give them an early leadership position in music-based gaming, which the company expects to be one of the fastest growing genres in the coming years. So, in 2006, they bought the company, Red Octane, which published Guitar Hero. They paid a miserly $100 million. Red Octane, prior to being bought out by Activision, signed a deal with Gibson Guitars to use designs of some of their guitars as controllers to be used with the game.

But, the game originated with Harmonix, a developer of music based games, who signed a deal with Red Octane to publish the game. The developer, Harmonix, recently launched a lawsuit against Activision who now owns Red Octane for failing to pay royalties under the terms of the Harmonix/Red Octane publishing agreement. But less than a week after launching the lawsuit, Harmonix withdrew it in favour of reaching an amicable agreement out of court.

But, a week later, Gibson Guitars sued Activision, the parent company of Red Octane, for patent infringement. The row started in January, when Gibson attorneys sent Activision a letter accusing it of violating a 1999 patent titled "System and Method for Generating and Controlling a Simulated Musical Concert Experience." A copy of the patent included in the lawsuit describes a device that lets a user "simulate participation in a concert by playing a musical instrument and wearing a head-mounted 3-D display that includes stereo speakers."

Activision disagrees with the applicability of the Gibson patent and wants a legal determination.

Gibson wants to sue Activision for patent infringement on an idea that they must have forgotten they owned, or they wouldn’t have signed the deal with Red Octane in the first place. It took Gibson three years to discover that a company with which they were partners (Red Octane) was breaching one of their patents (Gibson’s). So now they’re suing the parent company (Activision), who didn’t actually buy the company (Red octane) until after they had signed the deal with Gibson. Follow me?

The question that has to be asked is whether or not this is an actual patented invention, or an inappropriate attempt to patent an idea. In Europe, patents are not permitted on software applications. These are protected under copyright laws. In the US, the patent office has been accepting software patents for many years, but there has been no judicial ruling as yet and the legality of such patents is in question.

Songs, books and computer code can be copyrighted; but just how do you go about patenting an idea or a theory without specific music, words or code.

For example, could I patent an idea for a song about a man who catches his girlfriend cheating with another man, shooting the pair of them and then being sent to the gallows for murder. Could I then sue anybody who actually wrote such a song for patent infringement, even though I had never written a single word or note of music? But, that appears to be what Gibson is doing.

It’s hard to believe that Gibson actually wrote computer code or developed gaming hardware in 1999, six years before signing their deal with Red Octane. We’ll have to wait and see just what’s happened in this case.

Guitar Hero sold 14 million copies in North America alone in 2007, earning over a billion dollars in the process. Not hard to understand what this fight’s all about.