Guitar Hero Avoids Infringement Because It Fails to Create "Musical Sounds"
Although shaped like musical instruments, Guitar Hero video game controllers did not infringe patent claiming "musical instruments" which required the creation of "musical sounds." "[T]he Court concludes that musical sounds must have more articulable characteristics than a button’s clack or the thud produced from striking a table, piece of rubber, or piece of plastic."
YouTube Video Excluded From Evidence For Lack of Foundation (Among Other Things)
"YouTube video purporting to show that someone—perhaps the teenager the video appears to depict—hacked Guitar Hero to allow a configuration that could present a somewhat closer case on [infringement]" was excluded from evidence because (i) defendant failed to offer such evidence in its opposition to the summary judgment motion, (ii) the evidence lacked foundation, and (iii) the evidence was not relevant since there was no evidence that plaintiff "endorsed, encouraged, or knew about the system in the video."
Activision Publishing, Inc. v. Gibson Guitar Corp., 2-08-cv-01653 (CACD February 26, 2009, Order)