In recent years, one of the most popular video games has been Guitar Hero, published by Activision Publishing, Inc. The game generated fortunes for the company, but now it may have to regurgitate it all back. That's because a group called "Patent Compliance Group (PCG)" has filed a qui tam action against the company in the Texas Northern District Court on February 12. The lawsuit alleges that Activision has falsely advertised many of its video games including Guitar Hero 5, Band Hero, DJ Hero and Guitar Hero Smash Hits (collectively "Activision video game products") by marking "patented or patent pending" notation on its paperwork or packaging.
The PCG claims that Activision has violated 35 U.S.C. 292(a), which states that "... whoever marks upon, or affixes to, or uses in advertising in connection with any article the words "patent applied for," "patent pending," or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public - Shall be fined not more than US$500 for every such offense (in this case per item sold)." The PCG's position is that although some of Activision's patents are actually pending "none of its patent application has a potential scope of protection which would cover any aspect of the specified video game products."
The motivation of this kind of claim is in question, but for now it does not matter because if the company is found guilty, it may cost tremendous amount given the popularity of the games. Plus, this false patent claim may imply that other programmers can develop similar software without worrying about the patent infringement. The success in a qui tam action of this claim will heavily depend upon not only whether the PCG can show that the scope(s) of one or more of the specified patents do not cover the specified products, but also whether Activision had an intent to deceive the public with those markings.
