At the beginning of the month Interlink Electronics, a California based wireless mouse company, sued Nintendo over their Wiimote. While their patent didn’t necessarily cover the Wiimote in detail it looks like it may impact certain areas of the Wiimote.
On December 14th I had the opportunity to talk to Steven Rubin, from the Intellectual Property/Information Technology Practice Group of WolfBlock, New York. It should be noted that Mr. Rubin is not working on this case in any fashion and has only a preliminary knowledge of the case based on what is publicly available and that nothing in this interview should be considered legal advice or legal opinion. That said he does provide some insight into how patent lawsuits work and how this suit may impact Nintendo.
GamingNexus: Could you introduce yourself and talk about your role at your legal firm?
Steven Rubin: My name is Steve Rubin and I’ve been practicing law for almost ten years, exclusively in the intellectual property area. Most of my practice is related to patents. My background is in electrical engineering so most of the work I do tends to relate to the electrical and software side and business method stuff as well. My practice in general covers all the legal issues relating to patent property which is generation of patents, analysis of patent portfolios, litigation of patents, and counseling with respect to a clients own patent portfolio or a competitor’s patent portfolio.
GamingNexus: How are you involved in this case?
Steven Rubin: I’m not involved in litigation at all; my role is hopefully to give you some insight for your audience on some legal matters related to litigation. I don’t represent either party.
GamingNexus: Can you provide us with your timeline of the case?
Steven Rubin: Sure, I found out about this lawsuit last week sometime last Thursday when it was reported by the relevant media. It doesn’t seem to have gotten out there too much until early this week when people started reporting on it.
GamingNexus: In terms of the Wiimote where does the device actually infringe on Interlinks patent?
Steven Rubin: Whenever there is a patent infringement there are two things that you have to be concerned with. One, is the patent valid and two is there infringement. Obviously you are alluding to the second item.
I’m not sure that Interlink has a great case here despite the fact that looking through the patent there are drawings that make it look very similar to the Wiimote. If you take a look at the claims, which are the scope of the patent, the claims don’t really read on what the Wiimote is doing. All the claims have discussion about a rest location for a finger on the hand. The patent is directed towards a wireless mouse so I guess the idea being that you need to design a mouse and contour it ergonomically so someone can hold it and use it wirelessly and point to a screen. All the claims require this rest location, this recess somewhere on the back of the mouse. It is kind of a strange to put in there and I’m not sure why the patent is limited to that but it is and last time I looked the Wiimote doesn’t have that. It has a switch on the back but there’s no place for the user to rest their finger.
GamingNexus: The language I saw in the patent was this concept of a trigger located on the bottom of the device.
Steven Rubin: Right, the text and claims talk about a trigger and in addition to that a space where the user can rest their finger. Think of your middle finger resting on the housing of the device and that your index finger is used on the trigger button. All the claims require that, half the claims require a switch that is pressure sensitive and the idea here is that if you press down a little bit the cursor moves slowly on the screen and if you press down really hard the mouse cursor moves more quickly on the screen. Again, the Wiimote doesn’t have anything like that; it just has a cross hair [D-pad] and a couple of buttons. You’d probably have to go to the nunchuk attachment to even get close to that. I’m not sure that an analog is even going to correspond to pressure sensitive. It’s a question they are going to have to resolve through the courts.
What I also think is interesting is that there are some issues on the validity side. As I said all the claims have this recess where a user can rest their finger, half the claims have this pressure sensitive thing. That means that half the claims do not, that means that half the claims are very, very broad. All they are claiming is a wireless remote control which has a top and a bottom and there’s a place where the user can rest their finger. That’s a pretty broad claim and remote controls have been around for dozens of years. I think it’s likely that someone is going to be able to find prior art that shows such a remote control and invalidate those claims
GamingNexus: I was thinking something with like Nintendo’s own wavebird controller, are you familiar with that?
Steven Rubin: That’s the wireless controller for the Gamecube right? Sure that would likely do it assuming they could show something like that that predates this patent, and I think they could they are going to be able to invalidate half the claims. There are real issues of validity with half the claims and the other half of the claims have limitations that I don’t think the Wiimote has.
GamingNexus: Such as …
Steven Rubin: Well, I mentioned where a user can rest their finger and then there’s the pressure sensitivity for the switches. None of which appears to be shown on the Wiimote.
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