An innovative approach to resolving patent lawsuits

[Cédric Beust ♔]

Quake 3 duels!

Some context for non gamers: this guy is the creator of Minecraft and his company is working on another game called "Scrolls". They are being sued by Bethesda, creator of the "The Elder Scrolls" franchise because of the "scrolls" word.

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Cédric

[Josh Berry]

2011/8/17 Cédric Beust ♔ <ced...@beust.com>:

Excepting the case that this is not a patent lawsuit. :)

I love the last line of the update. Actually, love the whole thing.
Thanks for sharing this!

[Reinier Zwitserloot]

Yah, this is obviously a trademark lawsuit. I know the patent system is nuts, but patenting "A system and method for appellation of entertainment software by utilizing paper synonyms" is probably not going to fly... yet. I checked, and it is indeed a trademark lawsuit. You know, that's the thing where I can't start "Mike Rowe Soft" even if that's my name, because microsoft has trademarked "Microsoft". That one is more or less fair, though if I start a fruit company named "Apples and Pears", the guys in cupertino probably won't bother. Part of trademarking infringement requires there to be an obvious way for 2 products / brands to be confused, so starting a computer company with 'apple' in the name won't fly, but starting a fruit company is fine.

In this case, confusion based on name alone is somewhat unlikely ("The Elder Scrolls" vs. "Scrolls", with "Scrolls" being a fairly common dictionary word), but they are in the exact same category: Computer Game. Bethesda stands a chance to win this case, though that's of course separate from them being dicks enough to litigate against an indie developer over it.

[Kevin Wright]

Isn't that the same one where a record label named "Apple" don't sell computers, so long as a computer company of the same name doesn't sell music?

...especially not music by the band who created the aforementioned record label.

On 17 August 2011 19:21, Reinier Zwitserloot <rein...@gmail.com> wrote:

Yah, this is obviously a trademark lawsuit. I know the patent system is nuts, but patenting "A system and method for appellation of entertainment software by utilizing paper synonyms" is probably not going to fly... yet. I checked, and it is indeed a trademark lawsuit. You know, that's the thing where I can't start "Mike Rowe Soft" even if that's my name, because microsoft has trademarked "Microsoft". That one is more or less fair, though if I start a fruit company named "Apples and Pears", the guys in cupertino probably won't bother. Part of trademarking infringement requires there to be an obvious way for 2 products / brands to be confused, so starting a computer company with 'apple' in the name won't fly, but starting a fruit company is fine.

In this case, confusion based on name alone is somewhat unlikely ("The Elder Scrolls" vs. "Scrolls", with "Scrolls" being a fairly common dictionary word), but they are in the exact same category: Computer Game. Bethesda stands a chance to win this case, though that's of course separate from them being dicks enough to litigate against an indie developer over it.

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Kevin Wright
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"My point today is that, if we wish to count lines of code, we should not regard them as "lines produced" but as "lines spent": the current conventional wisdom is so foolish as to book that count on the wrong side of the ledger" ~ Dijkstra

[Reinier Zwitserloot]

Yup, that's exactly what all that Apple Corps (The beatles' music label) vs. Apple Computer Inc was all about. They had some trademark scuffle, a lawsuit was involved, apple signed something along the lines of "We won't enter the music biz, and as long as we don't you haven't a leg to stand on", and then iTMS opened, and there were some, uh, issues. Which I guess they worked out to everyone's satisfaction. But there you go, nice textbook trademark law case, and shows one of the inevitable weaknesses in such a system (companies that started out in entirely separate businesses growing into positions where they could be confused). Laws aren't perfect, they can't be. As long as they do more good than harm it's good, and I'm fairly sure trademark law stays on the books with that guidance.

Given that apple entered the music biz under a new name (iTunes, iTMS, or something along those lines), and that these are civil cases, judges are probably going to be relatively lenient vs. apple; they couldn't very well have foreseen that they'd be ending up here, and they put in some effort to attempt to avoid confusion. Apple Corps also isn't exactly a powerhouse of a brand either.

One of the major aspects of this case, to contrast it to patent lawsuits, is that apple's financial risk even in case such a judgement spectacularly blows up in their face is limited. Putting in some good faith work is usually not going to wreck your business (i.e. rebranding a few things, adding names, changing logos, showing a judge you're putting in a decent effort to avoid confusion). It might wreck your business if you've actually based your entire business on customers thinking you are actually some other company, but in those cases that's kinda the point of the law, so that's good.

The worst case scenario for most patent lawsuits is of the "My company is either bankrupt or so far up ye olde creek I'll need a million paddles to navigate my way back out of there" level. Sure, that rarely happens, but with that threat on the table it means any amount of posturing is bound to scare somebody into settling a ridiculous case on the teensy tiny chance going to court results in that horrorshow scenario. Come to think of it, I'm somewhat surprised all these patent reform discussions never mention a (severe) limitation on penalties. Sure, it lessens the payday of Joe Q. Lone Inventor (who doesn't really exist except in the movies, but, hey, he's _the_ strawman of choice for pro-patent discussions), but even with limited penalties, if Joe Q. Inventor can score a million or two max. out of bigcorp's attempt to copy their way into his business, well, he's still a millionaire.