On April 13, 2010, the Federal Circuit found that the Nintendo Wii did not infringe a patent held by Anascape, Ltd.  The Nintendo Wii is a popular gaming console which has sold millions of units worldwide.  The Wii uses an innovative control system where the motion and positioning of the controller determine what happens in the game, which is unlike most other game systems that only use traditional buttons for input.  With the Wii, the player typically uses one hand to hold a “nunchuck” and the other to hold the Wii Remote, and the two are used in unison to play the game.  Anascape holds a patent on this type of device, U.S. Patent 6,906,700 (the ‘700 patent), and had won an infringement trial before a jury in the United States District Court for the Eastern District of Texas.  At the jury trial, damages were awarded, and an injunction was issued and stayed pending appeal.  The Federal Circuit reversed the district court because the ‘700 patent was filed as a continuation-in-part of an earlier application whose written description only covered single-membered controllers.  The ‘700 patent, which covered controllers with multiple members, was considered a new invention from the earlier patent and therefore was not able to enjoy the earlier filing date.  With the later filing date and Anascape’s concession that a later filing date would render the patent invalid due to prior art, the court was able to reverse the jury verdict and to decide as a matter of law that there was no infringement. See Anascape, Ltd. v. Nintendo of America Inc., No. 2008-1500, 2010 WL 1441772 (Fed. Cir.  Apr. 13, 2010).

By Brett Havranek

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