Patent holder dodges motions to dismiss in video game cases

SAN FRANCISCO — A patent holder that has been suing well-known companies over alleged infringement on database patents from the late 1990s convinced a federal magistrate judge not to grant a motion to dismiss Friday in a lawsuit against prominent video game maker Ubisoft Inc.

The plaintiff, Pure Data Systems LLC, also survived a motion to dismiss in a case against another famous video game company, Electronic Arts Inc., on July 3.

The cases against Ubisoft and EA focus on the fact that both companies have their own online stores where users can purchase games. Pure Data claims that when a user purchases a new game, his or her “game library” is automatically updated using its patented technique.

Pure Data alleges its patent created a more efficient means of updating a user’s version of a database without having to unnecessarily transfer redundant information. The computer checks to see what differences there are between the user’s previous version of the dataset and the new version stored on the company’s servers and only replaces the outdated information on the user’s machine. Pure Data Systems LLC v. Ubisoft Inc., 18-CV00852 (N.D. Cal., filed Feb. 8, 2018).

Ubisoft, based in France, is best known for its historical fiction action series Assassin’s Creed and its open world survivalist shooter franchise Far Cry.

Pure Data has also previously brought cases against Fox News Network LLC, Pinterest Inc. and Imgur Inc., among others. Most of those cases were in Delaware and Texas, and the plaintiff voluntarily dismissed them early in the litigation.

The California cases will give attorneys in the state another chance to see how judges interpret the U.S. Supreme Court’s Alice ruling, which clarified how “101 motions” to dismiss should be handled.

These 101 motions attack the viability of patents that are targeted at abstract concepts or tasks that had previously been done manually and have now been computerized. The general interpretation is a company can’t just computerize a previously existing technique and claim it invented something new, but courts across the country are still figuring out how to interpret several aspects of the ruling. Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014)

“Like every other federal judge, I’m struggling with what the Supreme Court meant in Alice,” U.S. Magistrate Judge Joseph C. Spero explained as he opened the hearing.

Spero said he could see the defense’s perspective that the concepts described in the patents seem mostly abstract but added that he didn’t have any proof this type of technique was used prior to the patent being issued or that it made sense in a non-computerized context.

Michelle L. Marriott, a partner with Erise IP PA who represents Ubisoft, said the patents don’t provide any new technology. She contended they just lay out an order of operations for a task. Marriott argued the order of operations was obvious and straightforward, not inventive.

“As the plaintiff has described it, it’s simply comparing the differences between something and then transmitting that to clients,” she said. “I’m not sure there is a different order that could happen in.”

Spero said he understood that argument but couldn’t jump ahead in the case before seeing more evidence.

“Whether or not the ordering of these otherwise conventional steps is sufficiently inventive is a fact issue that can’t be resolved on pleadings,” he said.

This decision seemed to echo arguments made in the briefing by plaintiff’s attorney David A. Skeels of Whitaker Chalk Swindle & Schwartz PLLC.

“Ubisoft has failed to present any evidence from a skilled artisan — whether in the form of an expert declaration or otherwise,” Skeels wrote. “Rather, Ubisoft has relied entirely on attorney argument.”

The judge said he wasn’t inclined to grant the defense’s request to stay discovery until after the Alice issue had been resolved. He said these cases often settle early and that sort of decision should only be made by a judge when a plaintiff’s case has no chance whatsoever.

“It’s not a fairly obvious knockout blow to me,” he said.