Epic Infringed IP in Fortnite Concerts, Jury Told
America ı By Rochdi Rais
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Epic Games is facing allegations of infringing a patent related to virtual-world concerts held in Fortnite, featuring major artists like Wicked star Ariana Grande and rapper Travis Scott. The claims were presented to a Washington federal jury this Monday, with the plaintiffs urging that Epic Games should be held accountable for its use of the patent without proper compensation to the inventors.
The patent, originally developed by inventors Brian Shuster and Aaron Burch, was sold to Utherverse Gaming LLC. During the opening statements, Utherverse's counsel, Colby B. Springer of Polsinelli LLP, emphasized that the patent introduced a groundbreaking method for playing back recorded experiences in online virtual worlds, which played a critical role in enabling the massive scale of Fortnite’s virtual concerts.
Springer argued that the patent was essential for managing the millions of player-controlled avatars that participated in the 2020 and 2021 Fortnite concerts, without causing network overloads or other technical issues. He stated, "All of this was built on the back of Brian’s and Aaron’s invention. These solutions are not trivial. They are necessary. And no pun intended, a game changer."
However, Epic Games’ defense, led by Eric C. Wiener of Morrison Foerster LLP, contested these claims. Wiener argued that Epic had developed the underlying technology long before the patent was issued in 2017, citing the company’s Unreal Engine game development software, which has been in use since 1998. He noted that the patent in question pertains to recording past events, whereas the Fortnite concerts were live and could not be revisited after they occurred.
Wiener further clarified that while the virtual concerts featured 3-D avatars of performers like Travis Scott and Ariana Grande, the events did not involve reliving past experiences as described by the patent.
The concerts in question attracted tens of millions of participants and led to significant revenue through merchandise sales and in-game purchases. Wiener suggested that Utherverse’s motivations were centered on gaining a share of this success, claiming, "Utherverse wants in on this success, not a surprise. But they didn’t contribute anything to these events. They didn’t contribute their technology. And they certainly didn’t contribute their patent."
Brian Shuster, one of the inventors of the patent, testified as the first witness for Utherverse. He revealed that he was "really shaken up" upon learning about the Epic Fortnite concerts and reached out to Epic Games in hopes of negotiating a licensing agreement. However, he stated that Epic never responded to his attempts.
On cross-examination, Shuster acknowledged that the patent described an embodiment related to "time travel" in a virtual world, which he clarified was just one example of the technology’s potential.
The patent at the heart of the case is U.S. Patent No. 9,724,605.
Representatives for Utherverse Gaming include Colby B. Springer, Miya Yusa, Mark T. Deming, Emily McNally, and Melenie Van of Polsinelli LLP, as well as Kathryn Gusmer Cole and J. Mark Wilson of Moore & Van Allen PLLC. Epic Games is represented by Daralyn J. Durie, Timothy C. Saulsbury, Eric C. Wiener, Sara Doudar, and Katherine E. McNutt of Morrison Foerster LLP, Bethany D. Bengfort of Turner Boyd Seraphine LLP, Mark A. Lemley of Lex Lumina PLLC, and Antoine M. McNamara and Christina J. McCullough of Perkins Coie LLP.
The case is currently being heard in the U.S. District Court for the Western District of Washington under case number 2:21-cv-00799.
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