For more than a decade, Sony's patent applications have been disparaging Microsoft and Nintendo as 'inferior manufacturer[s]' of video game consoles: gratuitous, childish, unprofessional

Since last year I've been observing that Sony is an unreasonable--or, to use a word with which Sony was threatening the UK CMA with an appeal and which a journalist thought might describe Sony itself: irrational--complainant over Microsoft's acquisition of Activision Blizzard King. Today I learned that Sony's conduct as a patent applicant also raises serious psychiatric questions.

It was actually not another patent blog but GameRant that drew my attention to it:

Sony Throws Shade at Microsoft and Nintendo in Newly Published Patent

A newly published Sony patent oddly refers to Microsoft and Nintendo home entertainment consoles as 'inferior' to its products.

Hat tip to GameRant, but this is NOT NEW. It's long-standing Sony practice. They've been doing this since at least 2011!

Sony has incorporated that side swipe at Microsoft's Xbox and at Nintendo's consoles like the Switch for a dozen years in dozens of different patent applications.

It's amazing that no one has discovered this "tradition" before, and that no patent office told them a long time ago to stop doing that once and for all. Patent applications are not meant to be propaganda instruments for console warriors.

Here's the relevant language from the patent application GameRant discusses (WO 2023/055447, PCT/US2022(034277)):

"For example, an end user device may be a personal computer, a home entertainment system (e.g., Sony PlayStation2(R) or Sony PlayStation3(R) or Sony PlayStation4(R)), a portable gaming device (e.g., Soy PSP(R) or Sony Vita (R)), or a home entertainment system of a different albeit inferior manufacturer." (emphasis added)

GameRant is correct that "home entertainment system" is clearly defined by Sony's patent applications as video game consoles (or hypothetically multifunctional devices that come with video game console functionality). A patent is always its own dictionary. Therefore, saying that other home entertainment systems come from "different albeit inferior manufacturer[s]" is--as GameRant correctly notes --"obviously targeted at Microsoft and Nintendo."

GameRant is furthermore right that it's "strange for this language to appear in a patent." What is common and legit in patent applications is to explain why the claimed invention is superior over the state of the art (i.e., over technology existing at the time a patent application is filed). In that context, there is nothing wrong with discussing specific technical drawbacks (such as inferior performance, higher power consumption, greater memory footprint) of particular prior art (earlier inventions).

But calling competitors generally "inferior" is gratuitous, stupid, childish, and unprofessional. Even if those manufacturers were inferior, it would not mean that whatever invention a given Sony patent purports to describe--here, a "universal controller"--is by definition innovative and deserving of patent protection.

Sony is obviously the kind of client many patent attorneys want. If a small company went to the same patent attorneys and wanted them to file patent specifications that contain such an outrageous passage, most patent attorneys would decline to attach their names to it.

If Sony wants to engage in comparative advertising, it can do so elsewhere. Gamers are not going to make purchasing decisions based on the language Sony uses in its patent applications.

In November, Video Games Chronicle (VGC) quoted the same language from a different Sony patent application (PlayStation has been working on NFTs and blockchain technology, Sony patent reveals).

I've run some searches of patent databases--after almost 13 years of commenting on high-stakes patent litigation, that's obviously a routine activity for me--and found dozens of Sony patent applications that use the same idiotic language. I believe the oldest one of them--unless I missed an even older one, which can happen--is this one (PDF):

Redeemable Content Specific to Groups

Assignee: Sony Computer Entertainment America LLC

Filed: August 29, 2011

Appl. No.: 13/220,315

Don't get confused by the fact that the publication number is US 2013/0054689: that's the publication date. For the first 18 months, patent applications are in "stealth mode": they're in the database, but not publicly available. Then they get published and are assigned a date. But the filing date was August 29, 2011, and the following image shows the same idiocy as in the much more recent patent application that GameRant discovered (click on the image to enlarge):

Here's just a sample of other Sony patent applications that contain the words "different albeit inferior manufacturer" with (dis)respect to competing video game consoles:

• U.S. Patent Application No. 2013/0297393 A1 on "dynamic redemption codes" (filed July 9, 2013)

• U.S. Patent No. 10,245,505 B2 on "generating custom recordings of skeletal animations" (filed March 13, 2014)

• U.S. Patent No. 10,377,484 B2 on "UAV positional anchors" (filed December 29, 2016)

• U.S. Patent No. 10,999,391 B2 on "dynamic filtering and amelioration of content stream manifests" (filed October 30, 2017)

• European Patent Application No. EP3710122A1 on "synchronizing session content to external content" (filed October 31, 2018)

• U.S. Patent No. 11,080,748 B2 on "targeted gaming news and content feeds" (filed December 14, 2018)

• U.S. Patent No. 10,540,746 B2 on "course profiling and sharing" (filed July 30, 2019)

• U.S. Patent No. 11,420,130 B2 on "media-object binding for dynamic generation and displaying of data associated with media (filed May 28, 2020)

• U.S. Patent No. 11,364,437 B2 on "establishing and managing multiplayer sessions" (filed June 30, 2020)

• U.S. Patent No. 11,524,240 B1 on "virtual dojo" (filed August 17, 2021)

• U.S. Patent Application No. 2023/0021350 A1 on "health and wellness gamification" (filed August 25, 2021)

• U.S. Patent Application No. 2022/0193546 A1 on "content streaming with gameplay launch" (filed December 31, 2021)

GameRant was wondering whether "the offhanded remark" was related to Microsoft's acquisition of Activision Blizzard King, given that the filing GameRant discusses was made in June 2022, "about six months after Microsoft announced" that deal. The above list shows Sony has been doing this systematically for more than a decade. This is not attributable to pride in inventorship. It's just insane.

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After EU merger hearing, Microsoft announces 10-year deal with Nvidia for GeForce NOW that will also cover Activision's Call of Duty: it's getting lonely around Sony

As expected, Microsoft and Sony met at the European Commission's merger hearing today. Sony even got twice as much time as any other third party to make its case against Microsoft's acquisition of Activision Blizzard King. Shortly before the hearing, I posted a thread of 18 tweets.

The most significant news of the day was neither the hearing (what really matters is what will come out of subsequent remedy discussions) nor Microsoft's announcement (right before the hearing) of the signing of a 10-year Call of Duty license agreement with Nintendo, given that Microsoft and Nintendo had already announced a principal understanding in early December. The most important announcement was made at Microsoft's post-hearing press conference, simultaneously with which Nvidia put out a press release:

Microsoft and NVIDIA Announce Expansive New Gaming Deal

Partnership will bring blockbuster lineup of Xbox games, including 'Minecraft' and Activision titles like 'Call of Duty,' to NVIDIA GeForce NOW cloud gaming service

On Twitter a number of people were wondering how such agreements can be signed before Microsoft formally owns Activision Blizzard. The legally savvy part of this blog's readership obviously knows the answer: condition precedent (a condition that must be met for a contractual commitment to enter into force at all).

This means Sony is left with only one co-complainer: Google. Short of the fruity Evil Empire, that's about the worst ally to have in a context like this--especially in light of Google's $360M "Project Hug" deal with Activision Blizzard King.

Nvidia was not a "complainer-complainer" before: the message was that they were not against the deal per se, but wanted to ensure access to content, which I described as being "opportunistic". That strategy worked out: with the agreement announced today, Nvidia is happy, Microsoft builds momentum for its licensing-based approach, Sony feels lonely, and competition regulators face the choice between

• clearing a transaction that has positive effects for Nintendo's and Nvidia's numerous customers

  and

• trying to block the deal because the undisputed market leader in video game consoles might see its market share "plummet" from, say, 66% to 64%--which is doubtful enough, and at any rate could be avoided by taking a license deal.

What makes the second choice even less appealing is that regulators like the EC and the UK CMA need to turn merger law on its head to write a blocking decision. It's easy to forget this simple fact: if Sony were to lose a little bit of market share, that would--under the law--actually be an argument for, not against the deal.

I understand that unnamed "sources" who may be more or less Sony-aligned tell competition-specialized reporters that licensing wouldn't work reliably. It would be too hard to contractualize the total parity commitment offered by Microsoft and to enforce it later. The problem for Sony and any regulators it seeks to co-opt is this: there would have to be what is called a market test. Market participants would be asked to comment on the effectiveness of a proposed remedy. Sony's answer is predictable. Short of Microsoft offering Sony a majority of the voting rights in Activision Blizzard King, Sony will be against anything. But with respect to Nintendo and Nvidia, there's no more need for a market test: there already is empirical evidence that such sophisticated organizations see their concerns (if they ever had any) satisfactorily addressed by clear-cut, long-term commercial agreements.

Then there's Valve, which publicly stated that Microsoft offered such a deal but they said they didn't take it because they knew they could rely on Microsoft anyway.

Who's more credible? Sony, which simply seeks to exploit its walled garden and to harm a challenger, or the combination of Nintendo, Nvidia, and Valve?

Sony has countless license deals with game makers in place, and without knowing their content we can be sure that there are all sorts of complicated provisions in them, compared to which a parity commitment is easily enforceable.

Here's the most important sentence from Nvidia's press release:

"NVIDIA therefore is offering its full support for regulatory approval of the acquisition."

In other Microsoft-ActivisionBlizzard news, someone must have subpoenaed Valve as counsel for that company entered an appearance in the FTC's in-house litigation. Microsoft and Google are negotiating the scope of the former's discovery request and have agreed on another extension of the filing deadline for a potential motion to quash (now Friday, February 24).

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Nintendo's 10-year Call of Duty deal and NLRB charges against Apple pave the way for FTC approval of the acquisition of Activision Blizzard ahead of Microsoft president's meeting series with commissioners (reportedly today)

Today could be the most important day in the U.S. federal government's review of Microsoft's $69B acquisition of Activision Blizzard King (NASDAQ:ATVI). The New York Post, which reported on Sunday (as I analyzed in a blog post) that there may not be a majority at the United States Federal Trade Commission (FTC) for bringing litigation in an attempt to block the transaction, now claims to have the next scoop in this context: according to an article that appeared late Tuesday afternoon, "Microsoft President Brad Smith is planning to meet with the Federal Trade Commission’s three Democratic members on Wednesday."

The NY Post goes on to say that the executive "and a small group of his attorneys are slated to meet individually with FTC Chair Lina Khan — who is said to be skeptical of the tie-up and who this summer pledged to scrutinize the deal over its impact on workers — as well as Democratic commissioners Rebecca Slaughter and Alvaro Bedoya, according to sources close to the situation." Furthermore, "[t]he FTC’s commissioners are slated for a closed-door meeting on Thursday to discuss the merger and there’s an outside chance they could vote on it, sources said." Otherwise they could also vote later this month, but the NY Post believes things have recently accelerated and the decision won't take until January. The parties declined to comment.

From my perspective, the facts are pretty clear and I can't imagine there is any reason the FTC would have to wait until January. That's why I also don't believe FTC chair Lina Khan's pregnancy (she is expecting to give birth in January) should be considered a factor, and I can see why the FTC rejected any allusions to that.

The NY Post mentions what I, too, discussed yesterday: Mr. Smith's Wall Street Journal op-ed as well as Communications Workers of America (CWA) president Chris Shelton's The Hill contribution, both providing different reasons for approving the deal.

Two pieces of news that broke after those opinion pieces were published suggest to me that clearance is more likely now than before:

• As VentureBeat and other media report, "Microsoft has signed an agreement to take Activision Blizzard’s Call of Duty franchise to Nintendo, [..] pending the closing of its acquisition of the Call of Duty maker." And Microsoft reportedly also made a ten-year commitment to keep Call of Duty's PC version on Steam.

  So, Nintendo has accepted an offer (with respect to the Switch and its upcoming successor) that Sony has so far refused with respect to the PlayStation, obviously just because what Sony really wants is to delay and potentially derail the transaction as it would rather strike exclusive deals with an independent Activision Blizzard. It diminishes Sony's credibility that Nintendo has opted for a constructive solution.

  Another significant implication is that Sony claims Nintendo makes more of a family games platform and isn't really in the same market (for hardcore gamers) as the PlayStation and Microsoft's Xbox. Sony is the undisputed market leader one way or the other, but in one scenario, the Xbox is #3, and in the other (if one ignored Nintendo) it would be #2 and the market would be a two-horse race. In a recent submission to the UK Competition & Markets Authority (CMA), Microsoft gave examples of Nintendo games with a "mature" rating. Now, the fact that Call of Duty will be available on Nintendo's consoles is another example of Nintendo indeed competing for hardcore gamers who savor the action shooter genre. The Microsoft-Nintendo agreement should also bear significant weight with the UK CMA, which has been misled by Sony for too long.

  Microsoft previously said it wanted to make more games (including Call of Duty) available to more gamers, and the agreement with Nintendo is further evidence.

• FTC chair Lina Khan places some emphasis on labor implications of mergers, and in principle it is a laudable goal to consider not only consumers and competitors, but also an industry's employees, in a competition context. While game testers at a game studio Microsoft acquired a few years ago--Bethesda--are now free to unionize as they wish (and Activision Blizzard King employees would get the same benefit post-merger), other large tech companies than Microsoft notoriously push back on unionization in partly rather questionable ways.

  It probably won't go unnoticed by the FTC that a sister agency tasked with enforcing U.S. labor laws, the National Labor Relations Board (NLRB), has just held Apple in violation of those laws by interrogating workers and putting pressure on them in mandatory meetings:

  HUGE NEWS: NLRB has found merit on an unfair practice charge filed by @CWAUnion against Apple for thwarting organizing efforts at the Cumberland mall location by holding mandatory captive audience meetings, unlawfully interrogating employees, and more. https://t.co/yVMv5oXtfy

  — Apple Retail Union (@Apple_Union) December 6, 2022

  The CWA's support for Microsoft's acquisition of Activision Blizzard King contrasts nicely with Apple's conduct, and shows that workers' right to unionize--which is guaranteed under the CWA's agreement with Microsoft--is not to be taken for granted.

Now let's see whether those meetings between Microsoft's president and the three Democratic commissioners (the sole Republican at the moment is in favor of clearance anyway, and rightly so if you ask me) will yield a breakthrough. The fact that this effort is made is another indication that the FTC's hesitance to clear the acquisition has made an impact. But what is even more meaningful is that agreements such as between Microsoft and the CWA labor union as well as between Microsoft and Nintendo have materialized. Sony has a standing offer, and at some point competition enforcers may just tell the PlayStation maker that if it doesn't take the deal, it can't complain if the transaction is cleared anyway. Now, Microsoft would want to remain on the PlayStation in its own interest; removing CoD from that platform would not make sense (as a U.S. tech policy think tank already explained in October). That's why Sony doesn't want it--which in turn proves that there is no vertical foreclosure issue here.

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Pokémon GO infringes cloud architecture patent: Munich court ruling puts pressure on Niantic (Google/Nintendo) to settle with licensing firm K.Mizra

A few hours ago, the Munich I Regional Court's Seventh Civil Chamber (Presiding Judge: Dr. Matthias Zigann) announced its decision in K.Mizra v. Niantic: the wildly popular Pokémon GO mobile game infringes EP2433414, a patent on "servers for device identification services" that resulted from the research efforts of a reputable and sizeable Dutch organization named TNO (Nederlandse Organisatie voor Toegepast Natuurwetenschappelijk Onderzoe; Netherlands Organisation for Applied Scientific Research). The case numbers are 7 O 13977/21 and 7 O 10368/21. The defendants are Niantic entities in the U.S., UK, and Germany.

Thus far, US-based licensing firm K.Mizra hasn't sought an injunction--only a finding that is entitled to a damages award--but it could do so anytime. For the Pokémon GO community I hope this can be avoided, but as Juve Patent explained yesterday, "nothing has changed" about Germany's automatic injunction rule in patent infringement cases.

The court's press office has thankfully provided me with an anonymized version of the dispositive part of the ruling (the order in a narrow sense). Here's a screenshot of a key passage (click on the image to enlarge):

This comes as no surprise. At the end of the July 14 trial, Judge Dr. Zigann strongly encouraged Niantic--a Google/Nintendo joint venture, with Google's technology being particularly at issue in this case--to negotiate a settlement. Niantic has the right to appeal the decision to the Munich Higher Regional Court, but K.Mizra's infringement argument is rather strong (based on what was discussed at the trial), and the prior art cited by Niantic doesn't really seem to come close to the patented invention.

While it's unclear how protracted this litigation will become or whether it may even extend to other jurisdictions where members of this patent family have been registered (and which would take note of the Munich court's findings), K.Mizra is also asserting a patent against Samsung in Dusseldorf, targeting what is clearly an Android operating system functionality. That patent, too, was originally obtained by TNO. The Samsung case will go to trial in less than a year.

This is another significant win for the Wildanger firm. K.Mizra's winning lead counsel is Dr. Alexander Reetz, who handled matters in a calm but strategic and persuasive way. It was easy to follow his clearly articulated arguments. K.Mizra's lead patent attorney is Dr. Thomas Hell of Bosch Jehle). He and Dr. Reetz played and won as a team. I guess we'll hear about their work more often in the future.

Niantic is being represented by Quinn Emanuel's Dr. Marcus Grosch, who recently got mixed press, one of the reasons for which is that QE is the only patent litigation firm in Germany never to bring patent attorneys along to hearings and trials. That said, I wouldn't attribute QE's defeat in this case to its ironclad rule concerning patent attorneys: K.Mizra seems to have a pretty clear case, and this plaintiff's outside legal team apparently did everything right, so it may just have been impossible to defend Niantic here. But just last month QE also lost an appeal in a Netflix case. And it was two years ago to the day that the first of four German patent injunctions came down on QE client Daimler (the other three followed over the course of only 11 weeks). For a firm that states on its website that it has won 86% of all trials and arbitrations (not long ago they even claimed a 91% rate of success), the German patent litigation track record may very well be substandard. However, Wildanger may really have a hit rate at that level, or at least that's what I've recently seen in the cases I follow (examples: 1, 2).

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Munich court believes Pokémon GO infringes cloud tech patent, Judge Dr. Zigann encourages Google-Nintendo company Niantic to settle with K.Mizra licensing firm

When I learned about K.Mizra v. Niantic two months ago, it intuitively seemed like a very interesting non-standard-essential patent case to me. That first impression was more than validated by today's Munich patent infringement trial. The accused technology is the multi-player mode of Pokémon GO, which is operated by a Google-Nintendo joint venture named Niantic and the world's most popular game in the augmented reality (AR) genre. The patent-in-suit is EP2433414 on "servers for device identification services." The plaintiff, K.Mizra, is a patent licensing firm that has been assigned patents by major operating companies like IBM as well as a reputable and sizeable Dutch research organization named TNO (Nederlandse Organisatie voor Toegepast Natuurwetenschappelijk Onderzoe; Netherlands Organisation for Applied Scientific Research).

The panel is composed of Judge Dr. Zigann (Presiding Judge of the Seventh Civil Chamber of the Munich I Regional Court), Judge Benjamin Kuttenkeuler (the rapporteur in this case), and Judge Dr. Hubertus Schacht (who sometimes fills in to preside over hearings, which among other things led to the affirmance of the first Munich anti-antisuit injunction).

After scheduling a patent infringement ruling for August 18, Judge Dr. Zigann warmly encouraged that Niantic--the Google-Nintendo joint venture company that operates Pokémon GO--take a license, given that K.Mizra's complaint was hardly going to be rejected.

In all likelihood, the only question at this stage is whether K.Mizra will prevail

• on one or more method claims

  or

• on both its method and system claims.

The first scenario is the one Judge Dr. Zigann outlined during the first part of the hearing. K.Mizra's lead counsel--Wildanger's Dr. Alexander Reetz--subsequently gave the court potential reasons to conclude that the asserted system claim is indeed infringed within the territory of the Federal Republic of Germany. Territoriality is a non-issue for the method claim. The court did not indicate whether it might change mind about the system claim, but one way or the other, K.Mizra is on the winning track. If not for Germany's "loser pays" rule for the allocation and potential recovery of fees, the system claim's fate wouldn't even matter.

Niantic's counsel from Quinn Emanuel raised three claim construction arguments that are unavailing:

• The claim language refers to an application server and a correlation server. The application server in this case provides a game, and the correlation server identifies users who are standing next to each other and wish to play together. Niantic wanted the term "server" to be understood in the sense of a separate piece of hardware, but the court concurs with K.Mizra that it's all about the function. In today's cloud computing world, the distinction between logical and physical servers is key, and it makes even more sense in light of the description that says "the distinct server units may be [which means they alternatively "may not be"] constituted by servers having separate casings" (emphasis added)

• Niantic also disputed infringement because a "match message" does not go directly from one server to another (but through an end-user device). However, neither the claim language nor the specification supports that narrow reading.

• Yet another attempt by Niantic to narrow the scope of the patent-in-suit related to the digital messages. Niantic argued that the initial message involved a UUID, but later in the process something else would be sent.

  Dr. Reetz and his team (also including patent attorney Dr. Thomas Hell of Bosch Jehle) deserve credit for having convinced the court of their proposed claim constructions and infringement theories through their pleadings. Let there be no doubt about their strong performance at today's trial either. But it was Judge Dr. Zigann who made the best point in the claim construction context. He noted that it's not practical to require such messages as the one at issue in this case to be an identical bit sequence throughout a given process, pointing to the court's experience with codec patents. What a great example. It is indeed in the nature of codecs that the bit sequence changes (as a result of compression and decompression), which doesn't mean that there isn't some substantive continuity. That's an excellent analogy to today's patent-in-suit. (Munich is an increasingly popular enforcement venue for codecs.)

For now, K.Mizra is "only" seeking a judgment on the merits, which will entitle it to an accounting, subsequently to the receipt of which K.Mizra can calculate its damages claim and sue for a particular damages award. But as Judge Dr. Zigann noted, K.Mizra can at any point in time now bring an additional claim or injunctive relief. If K.Mizra did so with the lower court (instead of amending its complaint to that effect on appeal, which would be an option in Germany), it would have to bring an additional complaint, and Judge Dr. Zigann warned Niantic against the cost implications of such a case that K.Mizra would predictably win.

Niantic's invalidity arguments didn't get traction. To the extent that I was able to follow, it seemed that none of the prior art references came reasonably close, nor does there appear to be a case for intuitively combining two or more of them.

Under the circumstances, the only surprise today was that Dr. Reetz said Niantic had not sat down with K.Mizra yet to negotiate a license agreement. It actually seems that Google would have more than one reason to work constructively toward a solution. As I found out last month, K.Mizra is asserting another patent--which was also originally obtained by the Dutch research institute I mentioned further above--against Samsung, and if Samsung's phones infringe, then it's actually Google's Android mobile operating system that implements the patented technique.

Niantic was granted leave to file a post-trial brief, but the fact that the ruling is scheduled for five weeks from now--and three weeks after the deadline for that filing--shows that it's not really a difficult case for the court to decide. Come August 18, I'll try to find out more from the court.

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Patent licensing firm K.Mizra suing Pokémon GO maker Niantic (Google/Nintendo) over cloud architecture patent: Munich trial scheduled for July

The Landgericht München I (Munich I Regional Court) has informed me of a pair of patent infringement cases by U.S.-based patent licensing firm K.Mizra against Pokémon GO maker Niantic, a Google-Nintendo joint venture. The case numbers are 7 O 13977/21 and 7 O 10368/21 (Seventh Civil Chamber; Presiding Judge: Dr. Matthias Zigann), and the patent-in-suit is EP2433414 on "servers for device identification services."

The two cases will be heard on July 14. Counterintuitively, there is no prayer for injunctive relief in those cases, though I remember that Nokia didn't initially request an injunction against Daimler, but later amended its complaints accordingly. In German patent infringement proceedings, plaintiffs are even free to seek additional remedies during the appellate proceedings (as German appeals are rather broad in scope).

The name of the game is the claim--and claim 1 is usually the broadest one. This is what it covers (or just click here to skip the claim language):

A system for identifying proximate devices arranged for detecting a sensory identifier and transmitting request messages comprising representations of the detected sensory identifier, the system comprising:

• means for correlating representations of the detected sensory identifiers from the request messages received from the devices so as to match two or more of those devices, and

• means for carrying out an application involving devices that have been matched by said means for correlating representations,

wherein said means for correlating are at least one correlation server and said means for carrying out the application are at least one application server, the at least one correlation server and the at least one application server being distinct servers,

wherein the proximate devices are arranged to include, in the request messages, an indication of an application to be executed, the at least one correlation server being configured to compare the applications indicated by the request messages, and causing a transmitter to transmit the match message based on the match to an application server identified by the matching indications of the application in the matched request messages.

The TL;DR is that there are different types of servers,

• with one type having the task of identifying users who are in the same vicinity and

• the other providing the actual application that those geographically close users are using--and "sensory identifiers" (meaning something you can see, hear, smell...) are used to figure out whether users are really next to each other.

Pokémon GO was a blockbuster from the outset. A few years ago, Niantic added a "Buddy Adventure" feature. Here's a YouTube video from Santa Monica that wonders whether this is "[t]he FUTURE of Pokémon GO" and in which you can see the use of QR codes (such as on the title picture but also in the video, especially around 8m15s):

The user who initiates a multiplayer session then shows the QR code to others who must scan the code with their phones to join. The QR code is an imagine, so it undoubtedly represents a sensory identifier.

A quick Google search for information Pokémon GO's cloud architecture leads to--guess what--a Google blog post, "How Pokémon GO scales to millions of requests?"

When I became involved with patent policy in 2004 as a campaigner opposing the proposed EU directive on computer-implemented inventions (aka Software Patents Directive), I was an adviser to an open-source software maker (MySQL) and frequently raised the concern that open-source program code was available for inspection by patent holders looking to identify potential infringements. Reverse engineering often works as well, but it takes a lot more effort. Generally speaking, software makers can be too open for their own good if they reveal the inner workings of their products. Here, the defendant didn't open-source Pokémon GO in its entirety, but disclosed a whole lot of information in an interview published on a Google website. That wealth of information would normally require pretrial discovery in the United States. It may have been unwise to reveal so much. Also, Google's Kubernetes Engine, which is mentioned in that Google interview, is a piece of open-source software.

It's been more than nine years since I attended a Munich trial--before the same division, Presiding Judge Dr. Zigann's Seventh Civil Chamber--involving Google's infrastructure: Microsoft was asserting a patent against Google Maps and on the winning track with respect to infringement, but the patent was later deemed invalid by the Federal Patent Court. The Google Maps case raised a question of first impression: whether a cloud service that is partially provided by servers located outside of Germany can infringe the German part of a European patent. There have since been various German court rulings that have developed a certain standard for what constitutes an infringement in such setups.

Pokémon GO was a smash hit from the moment it launched and had to scale its server infrastructure to huge numbers of concurrent users more quickly than any previous game. What Google did was--and still is--admirable. I remember how at the height of the Pokémon GO frenzy there were groups of children running around trying to catch Pokémons. It's an augmented-reality game, and when I tried it out, I caught a first Pokémon on my desk and the second one in the garden. However, there was one aspect of it that I found highly objectionable (I didn't experience it myself but read about it): the random generator that decides where to place those Pokémons sometimes picked places like graveyards or private properties, resulting in trespassing or at least in inappropriate behavior. I believe it was highly irresponsible and reckless on Niantic's part not to ensure that Pokémons would be found in public spaces only.

Now Pokémon GO is facing what could be a serious and costly patent infringement problem. Google's go-to law firm for defending against patent lawsuits is Quinn Emanuel. The daughter of John Quinn (the "Quinn" in "Quinn Emanuel"), Megan Quinn, joined Niantic's board in late 2017 according to Wikipedia.

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Super Mario company paved the way for BMW and Daimler's invalidity defense against a Broadcom patent

There was a time when a video game console manufacturer like Nintendo and car makers like BMW and Daimler were technologically so far apart that one could hardly have imagined the same patent would get asserted against those three organizations. But times have changed, and a patent on programmable texture processing (a computer graphics patent) can now be alleged--whether with or without merit--to read on game consoles as well as car navigation systems (or other computing technology incorporated into a modern automobile).

There also was a time when filed pretty good amicus curiae briefs advocating reasonableness in patent enforcement (particularly, but not only, with respect to standard-essential patents). That, too, has changed.

Time is ticking away for some very old Broadcom patents on the verge of expiry. Last year, however, Broadcom forced the Volkswagen group into a billion-dollar settlement, exploiting the sad state of affairs of German patent law, where injunctions are granted--mnst of the time over patents that would later be held invalid--without an eBay v. MercExchange-like proportionality analysis. One of Europe's best patent judges believes Germany is in breach of EU law for that reason, and at a conference I recently organized in Brussels, a lawyer said the European Commission could, if it wanted, fine Germany for infringement of an EU directive.

The latest insanity--Germany-wide patent injunctions obtained by BlackBerry against Facebook and its WhatsApp and Instagram subsidiaries over four different (most likely invalid) software patents--shows that this situation is unsustainable. Germany's patent infringement judges unanimously oppose reform, but they're not going to be the ones to decide. At the most, they can influence the unelected officials at the ministry of justice, but the German legislature will make the actual decision.

Getting back to Broadcom's efforts to shake down the German automotive industry, it doesn't look like what worked against Volkswagen is too likely to work out the same way against BMW and Daimler--partly because time is not on Broadcom's side, and partly because Broadcom faces more resistance this time around.

Before Broadcom sued BMW and Daimler over EP1177531 on a "method and system for providing programmable texture processing," they also asserted that patent against Nintendo. The company known for video game consolers and for iconic game franchises like Super Mario and Pokémon was alleged to infringe that patent. But Nvidia then brought a nullity action (a complaint seeking invalidation of the patent by the Federal Patent Court of Germany), and Nintendo's lawyers from the Bardehle Pagenberg firm (which often defends BMW as well) convinced the Mannheim Regional Court that the patent was likely going to be annulled because an Nvidia chip sold before the patent's priority date already came with the technique the patent purports to cover.

Of Germany's leading patent infringement venues, the Mannheim Regional Court is by far and away the most responsible one when it comes to staying infringement actions over likely-invalid patents. Daimler will defend itself against a Nokia SEP case in Mannheim on Tuesday (December 10) as the court just confirmed to me on Friday.

Broadcom filed an interlocutory appeal against the order to stay the Nintendo case, and it remains to be seen what the appeals court--the Karlsruhe Higher Regional Court, where Judge Andreas Voss ("Voß" in German) presides over the patent-specialized division--will decide. The Mannheim court stayed the cases against BMW and Daimler for the same reason as in the Nintendo case, but reminded the parties in its order to stay the case against Nintendo and the pending interlocutory appeal.

A Broadcom subsidiary named Avago has meanwhile lodged some patent infringement complaints against BMW and Daimler. Daimler will have until January 22, 2020 for its answer to the complaint. But the patent is set to expire a few months later. So Broadcom/Avago may never actually get to enforce an injunction. The timeline in the case against BMW remains to be seen. Avago interestingly brought a lawsuit against BMW in Hamburg, a venue in which I have so far not watched a single patent infringement case. While patent infringement suits can be brought in any federal district in the United States, Germany designates specific courts, and almost all patent cases are filed in Dusseldorf, Mannheim, and Munich. It's not unheard of for someone to file in Hamburg (or Frankfurt, Berlin, or Nuremberg), but it's highly unusual.

I asked BMW for further information on those cases, and after telling me they referred my inquiry to the spokesperson in charge of this topic, I never heard back. Daimler declined to provide any information other than expressing the view that the complaint is meritless. So I had to tape some other sources.

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