By Zachary Wadlé

The widely popular Guitar Hero videogame series created by Activision Publishing, Inc. allows players to emulate their favorite rock guitarists, without requiring any actual guitar playing skill. However, this virtual reality was endangered last year by a threatened patent infringement lawsuit by guitar company, Gibson, longtime maker of iconic rock guitars such as the Gibson “Les Paul,” “SG,” “ES-335,” and “Flying V,” to name a few.

 In January 2008, Gibson sent a letter to Activision, claiming that Guitar Hero infringed upon Gibson’s registered U.S. Patent No. 5,990,405 (the “‘405 Patent”). This patent covered "a system and method for generating and controlling a simulated musical concert experience." Gibson claimed that the Guitar Hero game controllers – miniature plastic replicas of Gibson guitars with no strings, and four buttons on the fret-board – infringed upon Gibson’s patent and required Activision to obtain a license from Gibson, or else halt sales of any version of the Guitar Hero game and controllers.    

Instead of acceding to Gibson’s demands, Activision filed a pre-emptive request for declaratory relief with the United States District Court for the Central District of California (Activision Publishing, Inc. v. Gibson Guitar Corporation, CV08-01653 PSG (C.D. California). Activision’s lawsuit requested a declaration that Guitar Hero did not infringe on Gibson’s patent. Gibson responded by filing a lawsuit of its own alleging patent infringement by Activision.

On Feb. 26, 2009 the Court conclusively dismissed Gibson’s claims and held that Guitar Hero clearly does not infringe upon Gibson’s patent because the guitar-shaped controllers are merely toys that do not actually create music. The Court stated: “As a general observation, no reasonable person of ordinary skill in the relevant arts would interpret the ‘405 Patent as covering interactive video games…[t]he Guitar Hero controllers do not infringe because they do not produce instrument audio signals within the meaning of the ’405 Patent.” The Court went on to specify that the Guitar Hero controllers are more like manipulating a virtual reality device than the "actual musical instrument" phrased in Gibson’s patent.

The Court easily dismissed Gibson’s contention that the sound made by the Guitar Hero controller was potentially “musical,” because Gibson’s expansive interpretation of the term “musical” would extend coverage to a “button of a DVD remote…to a pencil tapping a table.” The Court concluded that musical sounds must have more definite “musical” characteristics than the “click” produced from striking the plastic buttons on a Guitar Hero controller. Although the Court’s ruling may call into question the “musical” talents of Guitar Hero enthusiasts, at least wannabe rockers are now assured that their inner Jimmy Page, Eric Clapton, Jimi Hendrix, Eddie Van Halen, Angus Young, and/or Slash can continue their World Tour.