Lawsuit challenges 'Guitar Hero' ads claiming patent

By Eriq Gardner

During Viacom's Q4 earnings call last week, CEO Philippe Dauman raised eyebrows by hinting that the company would seek to decrease licensing money paid to record labels and music publishers for songs used in its successful "Rock Band" video game:

"As we go forward, we are continuing to focus more on software than hardware, looking to reduce the cost structure associated with 'Rock Band,' being selective in the music titles that we choose for 'Rock Band' based on their cost."

Meanwhile, Warner Music CEO Edgar Bronfman believes the opposite:

"The amount being paid to the music industry, even though their games are entirely dependent on the content we own and control, is far too small"

Maybe if record labels such as Warner are unhappy about the money being paid for licensing rights, they should consider creating their own game.

But can they? Is "Rock Band" a patented concept?

Well, according to a qui tam action filed this week by the Patent Compliance Group against Vivendi's Activision Publishing division, the maker of "Guitar Hero," "Band Hero," "DJ Hero" and others, the games are being improperly advertised as patented or patent-pending. PCP claims that Activision has abused the process by not actually having relevant applications pending and/or not having patents that cover the scope of its marked products.

"False patent marking is a serious problem," the complaint says. "Acts of false marketing deter innovation and stifle competition in the marketplace."

PCP, on its own behalf and on the behalf of the U.S., is seeking monetary damages not more than $500 for each of Activision's violations.