Nintendo Wii Accused Of Willfully Infringing Patent That Was Applied For After Wii Was Introduced

September 14, 2011 Posted by zachary

This post was originally published on Techdirt.

Techcrunch is reporting on yet another patent dispute over the technology found in Nintendo’s Wii video game system. This time the company suing is ThinkOptics, the makers of the Wavit Remote.

The dispute is over the following patents:

  • 7,796,116: Electronic equipment for handheld vision based absolute pointing system
  • 7,852,317: Handheld Device for Handheld Vision Based Absolute Pointing System
  • 7,864,159; Handheld Vision Based Absolute Pointing System.

Notice a trend yet?

What is probably not surprising is that this patent dispute is being filed in the patent troll haven of East Texas. Along with Nintendo, ThinkOptics is suing Nyko, a maker of third party Wii Remotes, Gamestop and Radio Shack, both of whom sell the Wii and accessories, and finally JC Penny, for being over priced and of low quality, I guess. Not sure why other retail outlets aren’t being sued.

ThinkOptics’ primary argument for how Nintendo willfully infringed on their patents is that Nintendo’s own patent applications were rejected.

The rejection of […] applications — assigned to Nintendo Co. Ltd. — based on the ’116 patent is proof that the Nintendo defendants knew or should have known of the objective risk that one or more of their products infringed at least one claim of at least the ’116 Patent.

The dates involved are what makes this suit interesting. Of the three patents behind the dispute two were granted in 2010 and one is 2011. All three, however, were applied for in July of 2005, two months after Nintendo first introduced the Wii to the public at the 2005 E3 conference.

With these dates in mind, how could Nintendo possibly have known they were infringing on a patent when that patent was not even applied for prior to the first public announcement of the technology? What this situation shows is the need for an independent invention defense in the patent system. Here we have two companies developing similar technologies at the same time. There was no public information from either company prior to the patent filing to indicate that someone else was making this technology. Why should one of these companies be punished for treble damage for not finding information that was unavailable at the time of development?

It will be interesting to see what comes of this lawsuit. It will also be interesting to see how many more companies will sue over the Wii.

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