United States District Court, E.D. North Carolina, Western Division
UBISOFT ENTERTAINMENT, S.A. and UBISOFT, INC., Plaintiffs,
YOUSICIAN OY, Defendant.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
facts alleged in plaintiffs' complaint relevant to the
resolution of the instant motion are summarized as follows.
‘852 patent discloses software for learning to play a
musical instrument, such as the guitar. 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,
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
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.
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 ...