In March of this year, the Gibson Guitar Corporation, maker of the famed Les Paul Guitar, filed two patent infringement lawsuits. First, it filed suit against Wal-Mart, Target, K-Mart,, Game Stop, and Toys ‘R’ Us alleging that the popular Guitar Hero games infringe Gibson’s U.S. Patent No. 5,990,405 (the “’405 patent”) titled “System and Method For Generating and Controlling a Simulated Musical Concert Experience.” (The Gibson Patent). The complaint alleges that these retailers sold the allegedly infringing game, which, if proven, is in violation of United States Patent Laws. (Gibson’s First Complaint.pdf). Two days later, Gibson filed suit against Harmonix Music Systems, MTV Networks, and Electronic Arts, this time not only alleging that the Guitar Hero® games infringe its patent, but also newcomer and Guitar Hero chief competitor Rock Band® also infringes the ‘405 patent.  (Gibson’s Second Complaint.pdf ).  Both suits were filed in the Middle District of Tennessee, Gibson’s home venue.  Prior to Gibson’s filings, on March 11, 2008, Activision filed its complaint in the Central District of California seeking a declaratory judgment on the invalidity and non-infringement of the ‘405 patent.  As these three disputes involve the infringement of the same patent by the same products, it is likely that these cases will be transferred and joined if the litigation proceeds.

 It should be interesting to see how far this litigation will carry out.  Assuming that the relevant claims of the ‘405 patent are not invalid, the issues will boil down to the court’s claim construction.  More specifically, every independent claim in the ‘405 patent makes reference to a musical instrument, an instrument, or a guitar.  One of the contested claim terms will be whether the term “musical instrument” or “instrument” can be construed to include a video game controller shaped like a guitar.  The specification does not provide Gibson with much help.  The ‘405 patent never mentions embodiments of the invention that include a video-game controller rather than an instrument.  Neither does the ‘405 patent contemplate the possibility of a video game system acting as the “system interface device.”  Had the specification contemplated some of these alternative embodiments, Gibson’s claims of infringement would have been stronger. 

Assuming that at least a portion of the relevant claims are held not invalid and that Gibson obtains a favorable claim construction, it will be interesting to see which company blinks first.  The ‘405 patent was filed in 1998, so it will not expire until 2018.  Moreover, both games have enjoyed huge commercial success (Guitar Hero III Legends of Rock sold more than 1.3 million copies in its first week of sales alone) and the two games are in direct competition with one another.  It is likely that the first company to seek a license would up the ante and seek an exclusive license to the exclusion of the other competitor.  The unlicensed competitor would then be forced to fight its lawsuit with Gibson to the bitter end knowing very well that in the end it may be forced with to live with an injunction and be required a  to payout large amounts in damages.