Game Developer Wins Summary Judgment Against Repeat Patent Litigant

Judge Richard G. Andrews of the Delaware District Court granted summary judgment for game developer Take-Two Interactive in an opinion against Acceleration Bay.  The patent case revolves around three video games: Grand Theft Auto Online, NBA 2K15, and NBA 2K16. The defendants filed a motion for summary judgment alleging non-infringement of plaintiff Acceleration Bay’s patents.

There are five patents-in-suit: U.S. Patent Nos. 6,701,344 (‘344 patent), 6,714,966 (‘966 patent), 6,920,497 (‘497 patent), 6,732,147 (‘147 patent), and 6,910,069 (‘069 patent). Acceleration Bay sued Defendants for infringing upon these patents in 2015. That case was dismissed for a lack of standing. Acceleration Bay was able to achieve standing through a patent purchase agreement with Boeing Company, allowing Acceleration Bay to sue, but barring them from seeking damages for infringement before April 2015.

Some of the claims are method claims concerning adding and disconnecting participants from a network.  In Grand Theft Auto, players can roam freely or compete with other players in set games; Acceleration Bay argues that both ways of playing infringe upon its patents. Both NBA games involve online multiplayer modes, where players compete use a single court or multiple courts. Acceleration Bay alleges for multiplayer modes or multi-court modes that “the underlying networks are the same and all infringe its patents.”  

The court found that Defendants do not “make,” “sell” or “offer to sell” the allegedly infringing products; since Defendants provide software, not a “computer network” or “broadcast channel” necessary to infringe upon the claim, it is “the video game players, not Defendants, who assemble the claimed systems.” Similarly, the judge held that it is not the defendants who make various infringing components, rather the players use their own components or hardware for the game. Lastly, the judge found that the defendants have not infringed because customers installed the allegedly infringing software by themselves.

Acceleration Bay also accuses the defendants of using the patented information “when they developed, updated, and tested the video games internally.” This argument failed before the judge because of the prior failed argument; since the defendants do not “make,” “sell,” or “offer to sell” these infringing products they could not “use” them via testing its products.

This is not the first time Acceleration Bay has filed suit against game developers. Acceleration Bay has also sued Activision Blizzard, Electronic Arts, and 2KSports and others for patent infringement, some of which have been appealed.

Plaintiff Acceleration Bay is represented by Potter Anderson & Corroon LLP, as well as Kramer Levin Naftalis & Frankel LLP. Defendants are represented by Morris, Nichols, Arsht & Tunnell, as well as Winston & Strawn LLP.