Nintendo is no stranger to lawsuits around its intellectual property. Back in 1992 Nintendo of America brought a suit against the distributors of the Game Genie, Lewis Galoob Toys, arguing that the product (which 'locked on' to cartridges and let players mess with games by entering codes) allowed for the creation of derivative content that infringed upon its copyrights. It ultimately lost the case, with the presiding District Judge Fern M. Smith arguing use of the Game Genie was no different than “learning to speed read, fast-forwarding a video tape one has purchased in order to skip portions one chooses not to see, or using slow motion for the opposite reasons.” What exactly Judge Smith had used slow-motion to view was never made clear.
Nintendo is also no stranger to being on the other side of IP cases, particularly when it comes to its hardware.
On the 9th of August this year, for instance, Gamevice, Inc. filed a suit against Nintendo of America alleging that the Switch violates their copyright on their Gamevice product. In recompense, Gamevice is seeking monetary damages and a halt on sales of the Switch.
Gamevice product. Image via Gamevice.
The suit centres around the idea that the Switch violates Gamevice’s U.S. patent number 9,126,119, for a detachable controller add-on for tablet devices. Mashable has pointed out that there is a material difference between the products (the Switch’s Joy-Cons are not linked to one another; Gamevice’s controllers are), but Gamevice’s argument is that the Switch console itself acts as the bridge between the two. Incidentally, it's demonstrable that Nintendo has been experimenting with Joy-Con-like controller technology since the development of the Wii U.
Kostyantyn Lobov, a patent law expert and senior associate at Harbottle & Lewis, explained why the suit might have been brought against the Switch at this point in its lifecycle:
“If we're talking about a patent claim, you need to know at least in broad terms what your competitor's product does before you can even think about bringing a claim. Suing for patent infringement is also expensive, so there could also be some strategy around waiting to see how successful a product is before bringing a claim, to cause the most commercial damage, impact and inconvenience and hopefully encourage the other side to settle.”
That is to say, and without making any comment on the merits of this particular case, Nintendo's commercial success with Switch makes the hardware an inviting and potentially lucrative target. But the Gamevice lawsuit is far from Nintendo’s first brush with patent infringement. The Wii in particular was a lightning rod for copyright lawsuits, with a couple of judgements going against the company.
A Texas jury just ruled against Nintendo to the tune of £7.6 million, in a patent lawsuit brought against it by iLife over motion-control elements of the Wiimote. Nintendo is fighting the decision.
Back in Wii's early days, California-based Interlink Electronics brought a claim against Nintendo of America arguing that the pointer functionality of the Wiimote infringed upon a similar product they had patented in 2005. The suit, which was filed in December of 2006, asked that Nintendo be enjoined from continued patent infringement. Interestingly, the outcome of the claim appears to be outside public knowledge – which means that the case was either settled privately or Interlink Electronics backed off. The fact Nintendo didn’t cease production of the Wii until 2013 suggests this suit was unsuccessful, at least in the respect of stopping Wii being sold, and Patent Arcade lists the case as concluded.
The Wiimote was also the focus of a suit brought by Texan firm Anascape, which argued Nintendo and Microsoft had breached copyright on its patent for a controller with vibrational feedback. This case is notable because Microsoft decided to settle with Anascape out of court, and Nintendo was initially ordered to pay £16 million in damages related to their GameCube, Wavebird and Classic controllers (as well as face the possibility of their being banned from sale). After an appeal, however, the U.S. Appeals Court reversed Anascape’s win two years later.
It's not the only time Nintendo has found itself on the same side as the competition, and the Anascape case shows the big reason these suits are brought. Legal battles are so expensive that, in some cases, the easier course is just to settle. This leads to cases that some might call frivolous. In 2010 Nintendo was embroiled in a patent case that also targeted Microsoft and Sony over controller inputs. The suit, brought by Fenner Investments Ltd., centred around the technology behind joystick interfaces, and was thrown out when the U.S. Court of Appeals found that “that there are no genuine issues of material fact” involved in the claim, and that “no reasonable jury” would uphold Fenner’s claim. A similar case of mischievous patent claims was brought against Nintendo by Lonestar Inventions, with Engadget noting at the time that Lonestar had not, in fact, contacted Nintendo ahead of filing the suit.
The courts know all this, of course, and often hand down withering verdicts that highlight the motivations behind a given suit. Another potential abuse of the patent system that hit Nintendo was a case brought against it by Motiva LLC in 2008. Motiva argued that the Wii infringed on two of its patents for tracking body movement and position. In dismissing the appeal, Circuit Judge Sharon Prost argued that the case was motivated purely out of monetary concern, not about patent protection, saying “Motiva’s litigation was targeted at financial gains, not at encouraging adoption of Motiva’s patented technology.”
John R. Martin's patent filing. Image via Ars Technica.
The DS family of products also faced patent infringement suits as they grew in popularity. This one's a peach: the original DS was accused of patent infringement in 2008 by a John R. Martin, who claimed to own a patent on foldable touch screens and multiple displays. As Ars Technica pointed out at the time, Martin’s position was somewhat weakened by the fact that the DS was released almost a year before his patent was granted.
This year saw the conclusion of a long-running patent infringement case against another DS family member. Back in 2013, Seijiro Tomita, who claimed to have shown Nintendo the tech back in 2003, sued Nintendo over the 3D camera technology inside the 3DS. After initially losing the case and being ordered to pay damages, Nintendo appealed, and in March of this year the matter was laid to rest as the U.S. Appeals Court found in Nintendo’s favour.
Even Wii U, which escaped patent infringement lawsuits for the most part, has been caught up on occasion. In 2014, after a scary period in which sales of the product might have been banned (would anyone have noticed?), Nintendo and Philips reached an agreement over cross-licensing parts of the other’s portfolio.
Finally, it’s worth noting that Nintendo has been forced to defend itself from accusations its IPs infringe upon copyright upon occasion, not just its hardware. Most notably, in 1984, Nintendo successfully defended their use of the premise and name of Donkey Kong against Universal City Studios, with the help of an attorney named John Kirby. In appreciation for his efforts, it’s reported Nintendo gifted Mr. Kirby a sailboat named ‘Donkey Kong’, and you can't help but notice the coincidence of a later character named Kirby. Which all goes to show that, while Nintendo may be a financially juicy target with a family-friendly image to uphold, their legal team is a one hell of a final boss.