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Munich trial scheduled for July

The Landgericht München I (Regional Court Munich I) informed me of two patent infringement cases by American Patent Licensing Company K.Mizra versus Pokémon GO maker Niantic, a Google-Nintendo joint venture. The case numbers are 7 O 13977/21 and 7 O 10368/21 (Seventh Civil Chamber; President: Dr Matthias Zigann), and the patent in suit is EP2433414 on “servers for device identification services”.

Both cases will be heard on July 14. Unexpectedly, there is no prayer for an injunction in these cases, although I recall that Nokia did not initially seek an injunction against Daimler, but later amended its complaints accordingly. In German patent infringement proceedings, plaintiffs are even free to seek additional remedies during the appeal process (because German appeals are rather broad in scope).

The name of the game is claim – and claim 1 is usually the widest. Here’s what it covers (or just click here to skip the claim language):

A system for identifying nearby devices arranged to detect a sensory identifier and transmit request messages comprising representations of the detected sensory identifier, the system comprising:

  • means for correlating the sensory identifier representations detected from the request messages received from the devices so as to match two or more such devices, and

  • means for carrying out an application involving devices which have been matched by said means for correlating representations,

wherein said means for correlating is at least one correlation server and said means for performing the application is at least one application server, the at least one correlation server and the at least one application server being separate servers ,

wherein the nearby devices are arranged to include, in the request messages, an indication of an application to be executed, the at least one correlation server being configured to compare the applications indicated by the request messages, and causing a sender to transmitting the match message based on the match with an application server identified by the application match indications in the matched request messages.

The TL;DR is that there are different types of servers,

  • with a type having the task of identifying users who are in the same neighborhood and

  • the other providing the actual application that these geographically close users are using – and the “sensory identifiers” (i.e. something you can see, hear, smell…) are used to determine if the users are really next to each other.

Pokémon GO was a blockbuster from the start. A few years ago, Niantic added a “Buddy Adventure” feature. Here’s a YouTube video of Santa Monica wondering if it’s “[t]the FUTURE of Pokémon GO” and in which we can see the use of QR codes (as in the title photo but also in the video, especially around 8m15s):

The user who initiates a multiplayer session then shows the QR code to others who must scan the code with their phone to join. The QR code is an imagination, so it undoubtedly represents a sensory identifier.

A quick Google search for information on Pokémon GO’s cloud architecture leads to – guess what –a Google blog post, “How Pokémon GO scales with millions of requests?”

When I first became involved in patent policy in 2004 as an activist against the proposed European directive on computer-implemented inventions (also known as the software patent directive), I was an adviser to ‘a maker of open source software (MySQL) and I frequently raised the issue of openness – the program’s source code was available for inspection by patent holders seeking to identify potential infringements. Reverse engineering often works too, but it takes a lot more effort. Generally speaking, software makers can be too open for their own good if they reveal the inner workings of their products. Here, the defendant did not open Pokémon GO in full, but leaked extensive information in an interview posted on a Google website. This wealth of information would normally require discovery before trial in the United States. It might have been imprudent to reveal so much. Also, Google Kubernetes Enginewhich is mentioned in this Google interview, is open source software.

It’s been more than nine years since I attended a trial in Munich – before the same division, the seventh civil chamber of presiding judge Dr Zigann – involving Google’s infrastructure: Microsoft was asserting a patent against Google Maps and was on track for infringement, but the patent was later declared invalid by the Federal Patent Court. The Google Maps case raised a question of first impression: whether a cloud service that is partially provided by servers located outside Germany can infringe the German part of a European patent. Since then, various German court rulings have developed some standard for what constitutes an offense in such setups.

Pokémon GO was a smash hit from launch and had to scale its server infrastructure to accommodate large numbers of concurrent users faster than any previous game. What Google did was – and still is – admirable. I remember during the height of the Pokémon GO frenzy, there were groups of kids running around trying to catch Pokémon. It’s an augmented reality game, and when I tried it, I caught a first Pokémon on my desk and the second in the garden. However, there was one aspect of it that I found very objectionable (I haven’t experienced it myself but I’ve read about it): the random generator that decides where to place these Pokémon sometimes choose places like graveyards or private property, resulting in trespassing or at least inappropriate behavior. I think it was highly irresponsible and reckless of Niantic not to ensure that Pokemon would only be found in public areas.

Now, Pokémon GO faces what could be a serious and costly patent infringement issue. Google’s go-to law firm for defending against patent lawsuits is Quinn Emmanuel. the daughter of John Quinn (the “Quinn” in “Quinn Emanuel”), Megan Quinnjoined Niantic’s Board of Directors in late 2017 according to Wikipedia.

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