Does Nintendo’s Switch infringe on Gamevice’s patent?

A patent is a set of exclusive rights granted to an inventor, for their invention. To be granted a patent an inventor must show that their invention meets certain criteria. In the United States an invention must be useful, novel and not obvious. If an inventor can demonstrate to the United States Patent and Trademark Office that their invention is new, useful and not obvious, then they can be granted a patent. A patent gives the owner of the patent several exclusive rights, including the right to exclude others from making, using, selling, or importing the invention in the United States. If someone other than patent owner exercises one of the rights in the United States it is considered patent infringement. The patent owner can sue for patent infringement and request an injunction to stop future patent infringement as well as request that monetary damage be awarded.

Patents are publicly accessible documents. Patents must be publicly accessible so that people are given notice of what is an is not protected by a patent. It is a good practice, before launching a product, even if you have no plans on applying for a patent, to have a patent attorney review your product and do a patent search to see if there is a possibility that your product infringes on an active patent. An opinion letter from a patent attorney which states a product does not infringe on any active patents can be used as a defense against enhanced damages for willful patent infringement. A patent clearance search is part of a good due diligence process before launching a product.

If Nintendo did not get an opinion letter from a patent attorney before releasing the Nintendo Switch, Nintendo might have many troubles ahead.

Gamevice recently filed a patent infringement lawsuit against Nintendo, claiming that the Nintendo Switch infringes on Gamevice’s patent. GAMEVICE, INC. v. Nintendo Co. LTD, et al. 3:18-cv-1942 (N.D.CA 2018). Gamevice designs, develops and manufactures handheld controllers for use with mobile devices such as mobile phones and tablets. Gamevice has 38 patents in 16 different countries. Gamevice claims that the Nintendo Switch infringes on two patents, both patents are titled Game Controller with Structural Bridge. Essentially Gamevice’s patents are for left and right video game controllers which you can attach to a mobile phone.

Nintendo large multinational company with offices throughout the world. It manufacturers video game consoles, games for the consoles and accessories. In October 2017 Nintendo released the Nintendo Switch. The Nintendo Switch is a portable gaming console system with attachable handheld controllers. Essentially the switch is a screen with sides you can attach left and right video game controllers.

Just because a product looks similar to a patented invention does not mean patent infringement has occurred. Patent infringement only occurs when a product has each element of the invention which is claimed in the patent. Gamevice’s attorneys meticulously itemize each patent claim, describe how the Nintendo switch infringes on that claim and then illustrate how the switch infringes with pictures. The attorney that drafted the complaint did an excellent job. Nintendo’s attorneys will have their work cut out for them when they answer the complaint.

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