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Ubisoft Entertainment, S.A. v. Yousician Oy

United States District Court, E.D. North Carolina, Western Division

August 9, 2019

UBISOFT ENTERTAINMENT, S.A. and UBISOFT, INC., Plaintiffs,
v.
YOUSICIAN OY, Defendant.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 11). The motion has been fully briefed, and in this posture the issue raised are ripe for ruling. For the reasons that follow, the court grants defendant's motion.

         BACKGROUND

         On August 1, 2018, plaintiffs, developers and publishers of the video game Rocksmith and owners of United States Patent Number 9, 839, 852 (“the ‘852 patent”), entitled “interactive guitar game, ” initiated this suit asserting claims against defendant, a software provider for learning to play musical instruments, for direct, induced, and contributory infringement in violation of 35 U.S.C. § 271.

         Defendant filed the instant motion to dismiss November 29, 2018, arguing that plaintiffs' patent claims are directed to an abstract idea and therefore fail to cover patentable subject matter under 35 U.S.C. § 101.

         STATEMENT OF FACTS

         The facts alleged in plaintiffs' complaint relevant to the resolution of the instant motion are summarized as follows.

         The ‘852 patent discloses software for learning to play a musical instrument, such as the guitar.[1] The specification criticizes “[c]onventional learning tools and sources of instructional information for learning to play a musical instrument, ” which “include music teachers, music books, audio tapes or compact disks (CDs), and video tapes, ” as “limited in the quality of instruction or the manner in which the information is presented, ” whereas the present invention provides an “effective way to provide interactive method and system for learning and practicing a musical instrument, which provides both audio and visual feedback, and an integrated learning approach.” '852 patent, col. 1, ll. 26-32, 57-60.[2]

         Claim one of the '852 patent recites:

1. A non-transitory computer readable storage medium with a computer program stored thereon, wherein the computer program is operable to present an interactive game for playing a song on a guitar, wherein the computer program instructs one or more processors to perform the steps of:
presenting, on a display device, a plurality of fingering notations corresponding to the song to be played by a user;
receiving, from a guitar input device, an analog or digital audio signal when
the guitar is played by the user, wherein the received signal corresponds to the song played by the user; assessing a performance of the song as played by the user,
based on the assessed performance, determining a portion of the performance that should be improved; based on the assessed performance and the determined portion of the performance that should be improved, selectively changing a difficulty level of at least a portion of the presented plurality of fingering notations corresponding to the song; and generating at least one mini-game different from the game for the song being played targeted to improving the user's skills associated with the performance of the determined portion.

Id., col. 20, ll. 21-43. Dependant claim two further specifies the way in which the difficulty level is changed by “changing a frequency or a speed of the presented plurality of fingering notations.” Id., col. 20, ll. 47-48. Dependant claim three requires “selectively changing a difficulty level is performed in real time during the playing of the song.” Id., col. 20, ll. 50-51. Dependant claim four specifies that “the guitar is one of an acoustic guitar or an electric guitar.” Id., col. 20, ll. 53-54. Dependant claim six requires that “the computer program instructs the processor to assess past performances of the user and recommend appropriate songs based on a skill level of the user as determined from the past performances.” Id., col. 20, ll. 64-67.[3]

         Plaintiffs allege that assessing a user's performance for improvement and selectively changing the difficulty level of a song based on that performance, as claimed in the ‘852 patent, is an improvement on the prior art that utilizes computer programming to receive and assess audio signals from a guitar and selectively change the difficulty level to be played by the user ...


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