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Nintendo Must Pay More Than $30 Million For 3DS Video Game's Infringement Of Patent

Tomita Technologies International, Inc. owns U.S. Patent No. 7,417,664 issued in 2008 relating to stereoscopic 3-D images on-screen for viewing with the naked eye. Tomita International granted an exclusive license to the patent to Tomita Technologies USA, LLC. In 2011, Nintendo  Co., Ltd. and its subsidiary, Nintendo of America, Inc., began selling the Nintendo 3DS at their retail store, Nintendo World. Nintendo advertised the 3DS as providing "incredible gameplay featuring real 3D graphics, with no need for special glasses." It also touted its product as a "breakthrough in portable entertainment" and a "truly cutting-edge piece of hardware."

On June 22, 2011, Tomita sued Nintendo in the United States District Court for the Southern District of New York. Tomita claimed that Nintendo infringed its patent in violation of 35 U.S.C.S. § 271, either directly, indirectly, literally, and/or under the doctrine of equivalents. Tomita requested damages, including royalties, interest, attorneys' fees, costs, and treble damages, as well as an injunction against Nintendo.

Before trial, the parties argued over issues relating to the 3DS's alleged stereoscopic image pick-up device, video image display device, medium for transmitting video image information from the video image pick-up device to the video image display device, use of cross-point measuring means, use of offset presetting means, and adaptation to a display system of a portable digital assistant. Nintendo also disputed the validity of Tomita's patent under the Patent Act, 35 U.S.C.S. § 101 et seq., based on its obviousness due to prior art. Tomita's experts, John Merritt and Kenneth Amron, were also challenged, as Nintendo sought to exclude their testimony relating to the operation and function of the 3DS software and the meaning of the claim terms "cross-point" and "optical axes." In February of 2012, Nintendo sought summary judgment of non-infringement and no willful infringement, but Judge Jed S. Rakoff denied the motions, reportedly determining that a reasonable jury might find that Nintendo did infringe the patent. 

The jury trial before Judge Rakoff began on Feb. 25, 2013. During trial, Mr. Merritt testified as to Nintendo's infringement under the doctrine of equivalents of the cross-point measuring means and the offset presetting means limitations. In addition, he explained the structure in the 3DS that showed both literal infringement and infringement under the doctrine of equivalents. Nintendo believed that Mr. Merritt failed to apply the doctrine of equivalents on an element-by-element basis and to provide "particularized testimony and linking argument," as required by case law. According to a March 13, 2013, Law360 article, the jury awarded $30.2 million to Tomita, though Nintendo was confident that the verdict would be set aside. 

For other patent cases against Nintendo, see 2010 Jury Verdicts LEXIS 42679 (patent related to wireless communications); 2009 Jury Verdicts LEXIS 437620 (patent related to high capacitance structure in semiconductor device); and 2006 Jury Verdicts LEXIS 61824 (patents related to image frame buffer access speedup, and method and apparatus for spherical panning).

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