October 26, 2007 1:45 PM | Simon Carless
Actually, this started out as a GameSetWatch-specific story, but as I dug further, it ended up being interesting and mainstream industry relevant-enough enough that we ran it on Gamasutra this morning. Nonetheless, we'll reprint it here and then I'll give you some bonus commentary, how's that?
"On the eve of Guitar Hero III's launch, Gamasutra has discovered patents listed on the game's loading screen that reveal an agreement between Activision and Konami over Guitar Freaks gameplay patents, as well as prior patents apparently purchased by Activision to bolster its legal position.
Issues around game mechanic and design-related patents have become significant in recent years, with Gamasutra recently investigating a Midway-owned patent over 'ghost racers' in driving games that has been licensed by several major games.
The 9 patents listed are split into two specific areas - one set are patented by John R. Devecka, with the first, 'Method and apparatus for simulating a jam session and instructing a user in how to play the drums', issued on April 14th, 1998. This patent actually relates to the 'MTV Drumscape' electronic arcade machine, which predated the other patents listed.
The second set of patents are those owned by Konami, and include such patents as 'Game system and computer-readable recording medium', issued in 2002, which specifically relates to the Guitar Freaks arcade and home games. In this patent, it's explained: "The game system has memory device which stores performance data stipulating manipulations of a controller provided in correspondence with a predetermined musical piece." The full patent includes illustrations of the guitar controller and much detail.
Gamasutra asked S. Gregory Boyd, a lawyer who specializes in the game industry at Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York, on his opinions on the listing of these patents on Guitar Hero III's loading screen, and he noted:
"It is clear that Activision and Konami must have some sort of licensing arrangement for the Guitar Hero series. The United States Patent and Trademark Office public assignment databases show that some of the patent numbers listed in the Activision notice for the Guitar Hero series are not owned by Activision. We can also see that some of the patents in that list are now owned by Activision, but were recently acquired from third-parties. The other patents in the notice are owned by Konami."
As for Boyd's mention of patents being purchased by Activision, a further investigation of the patents originally owned by John R. Devecka, revealed that they have been assigned to Activision in the fairly recent past.
Gamasutra contacted Activision directly for clarification on this, and a company spokesperson confirmed to us: "Activision acquired the Devecka patents in or around August of 2006." Activision did not discuss why the firm purchased these patents, a fact confirmed by a Gorillamask.net messageboard thread that includes posts from Devecka's acquaintances.
As Boyd noted to us, it's clear that there has been an agreement related to patents between Konami and Activision. He explained: "A company only marks its products with patents it owns or has a license/permission to use. Marking a product with someone else's patents without a license is essentially admitting infringement, and that is never done."
Boyd concluded his comments by explaining: "So, there is some sort of license in effect, but we cannot know the terms of that license or the nature of the negotiation. One cannot tell if money changed hands, if there were threats of litigation, or if there was a cross-licensing agreement. All of these are common, but impossible to tell from the publicly available information."
Finally, Gamasutra reached out to both Activision and Konami for comment during the making of this story. Konami representatives had not replied as of press time, but in addition to confirming the Devecka patent purchase, Activision commented only: "We cannot comment on any agreement with Konami."
Needless to say, patent disputes and licenses such as this have major ramifications for the future of music games - and one area of particular interest might be how Harmonix/MTV's Rock Band deals with the same patents. Harmonix itself has several patents related to its music game history, but they do not seem to be listed on Guitar Hero III's loading screen. Activision would only comment: 'The terms of our agreement with Harmonix are confidential.'"
[BONUS GAMESETWATCH COMMENTARY: A couple of other informal updates - firstly, the Gorillamask.net thread from Devecka's acquaintances includes the claim that Devecka "...was hired as a contractor for them throughout the making of the game... they did sue Konami for whatever game it was way the f*ck back when." This implies that Activision sued Konami, but is rather hearsay-ish, to say the least.
Secondly, this Wired article by Chris Kohler mentions: "Red Octane (and later Activision) owned the name Guitar Hero, but Harmonix retained underlying patents on the style of gameplay it had pioneered." But none of these are the patents cited alongside GHIII, apparently. In fact, here are the Harmonix-owned music patents. I have an enquiry in to Harmonix about this and we'll see if they can say anything on the record.]