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Activision Gibson Patent Case - Summary Judgement Order

Activision Gibson Patent Case - Summary Judgement Order

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Published by metue
Summary Judgment in favor of Activision from US District Court in patent case regarding Guitar Hero video games and Gibson's prior patents. Made Available from Court Filings via Metue.com
Summary Judgment in favor of Activision from US District Court in patent case regarding Guitar Hero video games and Gibson's prior patents. Made Available from Court Filings via Metue.com

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Published by: metue on Mar 03, 2009
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Defendant.Case No. CV 08-1653-MRP (SHx)
Order DENYING Gibson’s Motionfor Reconsideration of the ClaimConstruction Order, SUSTAININGActivision’s Objections to Evidence,and GRANTING Activision’s Motionfor Summary Judgment
 In this action for declaratory relief, Plaintiff Activision Publishing, Inc.(“Activision”) seeks judgment that its “Guitar Hero” video games and associatedperipherals (collectively, “Guitar Hero”) do not infringe U.S. Patent No. 5,990,405(“the ’405 Patent”). The ’405 Patent is assigned to Defendant Gibson Guitar Corp.(“Gibson”).Presently before the Court are (1) Gibson’s motion to reconsider the Court’sprevious claim construction; (2) Activision’s objections to evidence proffered atthe summary judgment hearing; and (3) Activision’s motion for summary judgment of noninfringement.(1) Gibson’s reconsideration request is DENIED. In explaining its reasonsfor denial, the Court makes brief statements that clarify, but do not alter, its priorclaim construction.
In the course of its summary judgment discussion, however, the Court does alterits prior construction of “instrument audio signal,” a term not addressed byGibson’s motion for reconsideration.
Case 2:08-cv-01653-MRP-SH Document 231 Filed 02/26/2009 Page 1 of 26
Reprinted Online from Court Filings via METUE.COM
(2) Activision’s evidentiary objection to the proffered YouTube video isSUSTAINED.
(3) Activision’s summary judgment motion is GRANTED for the reasonsexplained below. In addition, the motion is GRANTED on the facts stated in (a)Activision’s Statement of Undisputed Facts and Conclusions of Law for Its Motionfor Summary Judgment, together with the reasoning stated in (b) Activision’s Brief In Support of Its Motion for Summary Judgment of Noninfringement; (c)Activision’s Reply Brief in Further Support of Its Motion for Summary Judgmentof Noninfringement; and (d) Activision’s Response to Gibson’s AmendedStatement of Genuine Issues of Material Fact.
In November 2006, Gibson licensed Activision to use Gibson trademarksand trade dress in connection with Guitar Hero’s “custom guitar-controllerperipheral.” Second Amended Compl. Exh F. In exchange for those rights,Activision paid Gibson a one-time, fixed license fee to cover the agreement’s term.
Gibson, in turn, agreed to help promote Guitar Hero.
The agreement doesnot refer to patent rights.
See also
Exh. C (Letter to Mary A. Tuck noting thesame).On January 7, 2008, Gibson sent a letter requesting that “Activision obtain alicense under Gibson’s ’405 patent or halt sales of any version of the Guitar Herogame software . . . and . . . instrument controllers.”
Exh. B (Letter to GregDeutch). When Activision requested additional information, Gibson replied onFebruary 18, 2008 with a “Preliminary Claim Chart” comparing the claims of thepatent and Guitar Hero, and requesting that Activision respond by February 22,2008.
at Exh. C (Letter to Mary A. Tuck). Activision sought additional time torespond; and, on March 10, 2008, Activision denied Gibson’s request on ground of noninfringement of any valid claim and noted that “Gibson knew about the Guitar
Case 2:08-cv-01653-MRP-SH Document 231 Filed 02/26/2009 Page 2 of 26
Hero games for nearly three years, but did not raise its patent until it became clearthat Activison was not interested in renewing the License and Marketing SupportAgreement.”
at Exh. D (Letter to F. Leslie Bessenger III).On March 11, 2008, Activision filed this action. The operative complaintrequests declaratory judgment that (1) Guitar Hero does not infringe the ‘405Patent; (2) that the ’405 Patent is invalid; (3) Gibson is barred from alleginginfringement by an implied license and the doctrines of equitable estoppel andlaches; and (4) Activision has not breached its agreement with Gibson.
 ¶¶ 18-60.Thereafter, on March 17 and March 20, 2008, Gibson filed actions in theDistrict Court for the Middle District of Tennessee that also allege infringement of the ‘405 Patent.
Gibson Guitar Corp. v. Wal-Mart Stores, Inc. et al.,
No. 3:08-CV-279;
Gibson Guitar Corp. v. Harmonix Music Systems, Inc. et al
, No 3:08-CV-294.The Tennessee actions name Guitar Hero retailers. They also allege that “Rock Band,” a Guitar Hero competitor, infringes the ’405 Patent. The Tennessee actionsare presently stayed in favor of this case.Gibson’s previous firm, Stroock & Stroock & Lavan LLP (“Stroock”),litigated this case through claim construction. Anticipating Activision’s summary judgment motion, Stroock requested post-claim construction discovery to protectGibson’s interests. The Court allowed discovery. Activision complied, providingGibson information about Guitar Hero, as well as Guitar Hero-related informationproprietary to third-party system providers. Tel. Stat. Conf. Tr. (Oct. 8, 2008); Stip.and Order on Sched. for Disc. and Briefing in Conn. with Motion for Summ. J.(Oct. 15, 2008).Stroock’s client, Gibson, then ceased responding to Stroock’s requests forinformation. Due to Gibson’s lack of cooperation, Activision could not obtain allthe discovery it sought to prepare for its summary judgment motion. Tel. Stat.Conf. Tr. (Dec. 2, 2008); Sched. Conf. Hearing Tr. at 5-7 (Jan. 5, 2009).
Case 2:08-cv-01653-MRP-SH Document 231 Filed 02/26/2009 Page 3 of 26

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