Xbox Live Targeted for Patent Infringement (again)

A patent infringement suit targeting Xbox Live that we’ve been keeping our eye on went to trial yesterday in the U.S. District Court for the Eastern District of Michigan. The suit was originally filed back in September, 2004, by two inventors claiming Xbox Live infringed two of their patents covering voice and data communications technology.

This case already produced some fireworks last month, when the judge overseeing the case threatened Microsoft’s counsel with sanctions for a "frivolous objection" to a discovery request. Microsoft’s counsel had objected to a request by the plaintiffs for a document relating to a “2008 deposition” of a certain Microsoft employee, when they meant to say “2009 deposition.” The judge asserted that Microsoft’s counsel improperly used a typographical error to raise an objection on the ground of vagueness. The judge also chided Microsoft’s counsel for producing over 140,000 documents without an index, saying the action demonstrated the pitfalls of playing fast and loose with rules of discovery and that Microsoft’s counsel must account for its misconduct.

Just this past Monday, the judge backed a motion made by the plaintiffs to adopt a claim construction over Microsoft’s objection. Previously, Microsoft had submitted a motion for construction of claim 39 of Patent Number 5,292,125, asking the court to construe the claimed “video game communications circuit” as separate and distinct from the video game computer attached to the circuit.

The judge referred the motion to a special master, who recommended rejection of Microsoft’s construction of “video game communication circuit” and that the phrase should instead be construed to mean “a circuit operatively associated with a local video game and at least one remote video game without limitation as to such circuit's physical location or attachment to the local video game.”

After nearly five years, it will be interesting to see how this one turns out.