By Alex Gasser
On March 21, 2011, Creative Kingdoms, LLC of Wakefield, Rhode Island and New Kingdoms, LLC of Nehalem, Oregon (collectively, “Proposed Complainants”) filed a complaint requesting the ITC to commence an investigation pursuant to Section 337.

The complaint alleges that Nintendo Co., Ltd. of Japan and Nintendo of America, Inc. of Redmond, Washington (collectively, “Nintendo”) unlawfully and without authorization import into the U.S., sell for importation, and/or sell within the U.S. after importation certain video game systems and wireless controllers and components thereof that infringe U.S. Patent Nos. 7,500,917 (the ‘917 patent), 6,761,637 (the ‘637 patent), 7,850,527 (the ‘527 patent), and 7,896,742 (the ‘742 patent) (collectively, the “Asserted Patents”).

According to the Complaint, the ‘917 patent concerns a handheld wireless toy wand for facilitating a wireless interactive game in a real or computer generated environment where the toy has multiple motion sensors that cause different play effects based on different movement, or alternatively, where the toy can send different command signals based on movement of the toy and store user tracking information.  The ‘637 patent is directed to an interactive game involving a transportable device that stores the player’s progress in the game, resulting in a modified game experience for the player, where the player moves the transportable device in such a manner as to electronically send and receive information to and from a master system and/or to actuate various play effects within an interactive play environment that may be real or computer generated.  The ‘527 patent concerns an interactive play system where game participants simultaneously use wireless, handheld devices containing motion-sensitive circuitry to activate various effects throughout the game, and in addition to responding to player motions, the wireless devices contain memory, thereby enabling players to store information pertaining to game play that can be used to modify the game experience.  The ‘742 patent relates to a motion-sensitive input device for facilitating a wireless interactive game having multiple motion sensors that cause different play effects to activate based on different movements of the input device, which is also capable of storing information pertaining to the user’s identity and progress during game play, wherein an auxiliary device can attach to the motion-sensitive input device to provide additional motion-sensing capabilities.

The accused products identified in the complaint include Nintendo’s Wii wireless game system and controllers, including the Wii remote controller, alone and in combination with the Wii Nunchuck, Wii Motion Plus, and/or Nintendo licensed peripherals, and various Wii-compatible game discs.  The Complaint also states that the Proposed Complainants will seek through discovery to determine if a Nintendo portable gaming system known as the “3DS,” infringes the Asserted Patents.

Regarding the technical prong of the domestic industry requirement, the Proposed Complainants allege that they license, own and/or operate a series of live action interactive game parks named MagiQuest, wherein players use handheld, motion-activated wands to cast seemingly-magical spells, complete various tasks and advance in the game.  The MagiQuest Silver/Gold Adventure Series Wands are exemplary products that, when used with the interactive effects at MagiQuest locations, practice at least one claim of each of the Asserted Patents.  With respect to the economic prong, the Proposed Complainants allege that they and their licensees have significant investment in employees, plant and equipment in the United States dedicated to the operation of gaming attractions and support operations for products covered by the Asserted Patents, as well as research and development, design, product support, testing and quality management, and licensing with respect to the Asserted Patents.

As to related litigation, the Complaint states that Creative Kingdoms, LLC contemporaneously filed suit in the U.S. District Court for the District of Oregon, asserting, inter alia, that Nintendo infringe the same Asserted Patents.

With respect to potential remedy, the Complaint requests that the Commission issue a permanent limited exclusion order and a permanent cease and desist order directed at Nintendo.