(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.
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