Nintendo Faces Patent Lawsuit, Apparently Over DS Touch Screen

Nintendo, which recently lost a $21 million patent case to Anascape, is currently litigating another federal patent lawsuit filed by an Illinois man.

In his complaint, John R. Martin alleges that he patented touch screen and pointing device gaming technology in August, 2005. The original Nintendo DS launched in November, 2004 in the United States. Martin’s patent application describes his creation as:

An electronic game device system [which] is switchable between an amusement mode and a gaming or gambling mode and is useful for vehicles such as airplanes or boats which move geographically from jurisdictions where gambling is legal to jurisdictions where it is not…


An improved method of operating a touch screen on a CRT or ICD computer screen uses finger release as input registering… Mounting arrangements for mounting computer screens or monitors are also disclosed…

The drawing at left, from Martin’s patent application, illustrates how he envisioned a user interacting with his device. While Martin does not specifically refer to the DS, the form of input he decribes seems to fit the DS as opposed to the Wii’s motion-sensitive input.

In its response, Nintendo has denied infringing upon Martin’s patent, of which it says it was notified in November, 2007.

Martin has a similar suit in the works against Apple, presumably over the iPod’s touch-sensitive scroll wheel.

GamePolitics has a lodged a request with both Nintendo and the plaintiff’s attorneys for additional information.

Tweet about this on TwitterShare on FacebookShare on Google+Share on RedditEmail this to someone


  1. Anonymous says:

    so does this asshole because he thinks he can argue infringement on tech that came out a year before his patent. then again fuck i love america too

  2. FerociousFeline says:

    I’m sorry but if they seriously even entertain this trolls bs explanation for what he claims to be a patent infringement, then in my humble opinion the judge and jury who find in his favor will be guilty of assisting in theft. 

    His description of the activity that he claims a patent on is touch RELEASE.  Any idiot can determine that the DS uses sensing technology which determines the stylus’s posistion NOT on RELEASE, but on CONTACT.

    This is so far out of what could be considered legitimate that personally, I feel like the bringer of this suit should have to pay the state court costs and damages to the people for wasting our judicial systems time and money.  The only thing this "inventor" has created is a method by which he can exploit existing systems DESIGNED TO PROTECT INVENTORS! 

    Hang the sumbi*ch HIGH.


    (not that I feel PASSIONATE about it or anything)



  3. Anonymous says:

    PAIR’s back and running, so I was able to check the file history.  The examiner cited Tanaka, Patent #5266931, against this patent, which does teach the error-fixing element (being able to select from a larger area than the displayed button).  The applicant got around it by noting that the Tanaka patent doesn’t allow the user to select a second button while keeping the pen/finger down, and afterwards the examiner allowed the claims.  So, it’s that last element of being able to select a second button by sliding the pen/finger that made this thing patentable, not the error-checking.

    This additional element of selecting a new button while the pen is still down is still very obvious–but the USPTO doesn’t really let examiners reject claims on the grounds that a claim is intuitively obvious.  They have to find a publication to cite against it, and a lot of examiners don’t want to take the time to find that publication (also, they’re expected to be lenient with allowing patents.)

  4. ChrowX ( User Karma: 0 ) says:

    I still can’t believe that those idiots over at Anascape actually won that law suit.

    Moreover, I find that suing over patents is getting to be the new hot thing to do when it comes to wasting the American legal system’s time.  Moreover, the people who are doing it seem to be profitting more from the idea than they ever would from actually making and selling the product, which, in both cases, neither of these morons have done.

    Have we really reached the point where we can sue people just for having the same ideas as us? Because if that’s the case, iw ant to sue Bandai for stealing my White Ranger idea on Power Rangers. I thought of that weeks before thos episodes aired! Where’s my $21 Million?

  5. RazorBlade29 says:

    Well what about other touch screen devices dating back to the early 90’s like the world first pda’s that had basic stylus gaming in like 1994 and 1993 so im really in the dark about wtf hes talking about

  6. Edgehopper says:


    Oh, that was in my description–that the sensitive area is slightly larger than the displayed area.  I’ll take your word for it that that was the limitation that got the patent granted, it sounds right (For some reason, PAIR is down at the moment, so I can’t check the file history that way.)  Still, that little addition is obvious to anyone who reads this blog, led alone anyone reasonably skilled in the art (computer graphics/operating systems).

    It should be easy enough to figure out the formal obviousness challenge.  Find a publication mentioning the idea of increasing a margin of error in a user input for ease of use published before 1995, and the game is over before it begins.  That’s just the tougher obviousness challenge–there’s probably a publication out there somewhere from before 1995 describing exactly this system.  This patent should never have been issued, it won’t hold up in court, and the fact that the PTO is far too lax in allowing software patents doesn’t mean that this one gets through.

    My prediction is: Nintendo wins on summary judgment, or settles for a nominal amount before then.  This case will never get to trial.

  7. Gaming Dutch says:

    I may be wrong, but if Edgehopper has it right, then the guy seems to have been able to patent how every website in the world has worked since forever, with the only difference being the touchscreen.

    The "touch, release ore slide over" idea has also been standard for as long as I can remember people using mice and visual interfaces.

    As far as I know most touchscreen software  has always offered "relative" to screen functionality, meaning they behave just like a mouse but the cursor (be it visible or invisible) just immediatly jumps to the part of the screen you touch.


    There is nothing really new in there (not even the combinations he describes) and he still got a patent?

    Man thats just wrong.


  8. ActionGaz says:

    Each button has a larger area. To press a button you must press within its visible area but you can move your finger and release it anywhere within the larger button area and have this be accepted as a press on the button. The idea being to allow for slightly less accurate releases and one assumes more sucess in using the device. This is certainly within the realm of patentable ideas, given the standards these days.

    Whether the DS (or more specifically software for the DS) and the iPhone do this, I don’t know but it’s possible.

    Also, there were probably about five patent applications that all shared the same description (to save money). They’re all listed in the Summary section as the five different objects of the invention. Only the last of these objects applied to the claims in this patent.

  9. ecco6t9 ( User Karma: 0 ) says:

    Um did people forget about the Game Com?

    Tiger/Hasbro should be suing his ass.

  10. Edgehopper says:

    In a patent infringement suit, the main thing that matters is the claims of the allegedly infringed patent, not all that other descriptive stuff.  The patent linked to by GamePolitics has 2 claims, both of them are method claims, and both of them are Jepson claims (claims defining the invention in terms of the improvement over the prior art, rather than just describing the invention.)  Here’s what they are, with my translation into English in brackets afterwards:

    1. In a method of operating an electronic machine of the type having a touch screen upon which buttons are displayed for operator input or selection by the operator placing or sliding a finger on at least one of the desired buttons, the improvement comprising: [A touch screen device with buttons]

    displaying a plurality of buttons on the screen, with each of the plurality of buttons having visually defined boundaries on the screen; [displaying buttons]

    defining an enlarged sensitive area for each button having a larger area than the visually defined boundary for that button; [allowing the user to touch slightly outside the displayed button]

    activating the enlarged sensitive area for a first button when a finger touch which is still touching the screen is sensed for said first button and concurrently highlighting the visually defined boundary for said first button; [highlighting the button when the user touches it]

    registering a button selection for said first button when the finger touch is released anywhere within the enlarged sensitive area for said first button; [treating the button as pressed when the user lifts his finger]

    un-highlighting said first button when a finger which is still touching the screen exits the enlarged sensitive area of said first button without being released, and, when finger touch is sensed from finger placement on or finger sliding on a visually defined boundary for a second button with said previously highlighted first button being unhighlighted, activating the enlarged sensitive area for said second button and concurrently highlighting the visually defined boundary for said second highlighted button. [allowing the user to cancel selection by sliding the finger outside the first button, and activating another button if the user slides into that button]

    2. [The same thing for mouse-operated devices]

    So yes, Nintendo does infringe–as does every other touch screen device known to man.  The patent is blindingly obvious, almost certainly anticipated, and the court will probably find it invalid if Nintendo fights it long enough.

    For those confused by the description, I can’t say for certain without reading the file history, but here’s what I think happened.  The application probably initially included claims on the more interesting GPS parts, mounting arrangements, etc. listed in the abstract, which were all cancelled during prosecution.  Typically when you get a patent, you turn in a description when you first file, and by the end of the process, the description may have very little to do with the actual claims that got allowed.  This is such a case.

  11. Anonymous ( User Karma: 0 ) says:

    His "patent" uses finger imput.. Doesn’t say anything about a stylus.. He fails.

  12. JustChris says:

    In the university I went to, the College of Engineering invented a motion control device with buttons and pressure-sensitive joystick that let you pick up virtual objects or swing them around. It went by the moniker "the wand" and part of a larger interactive system. It was an immersive room filled with screens, though it can easily just be one screen. Sure, the graphics resembled an early PS1 game, but for something made in the mid 90’s it was the epitome of immersive digital experiences.

    This was back when people were nuts about virtual reality, but the motion controls remained an interesting aspect. And when the Wii’s technology was revealed, I don’t recall the university complaining to Nintendo. In fact it was like a total deja-vu for me. Now I could bring the experience home, with upgraded graphics, and without the cords, or old SGI computers that required an arcane scripting language to run the programs. With that said, I’d like to play a mountain-climbing game on the Wii now.

  13. MJPM says:

    So, he sues Nintendo and Apple for a patent explicitly geared toward gambling devices with the rationalization that they use touch-screen technology for a portable electronic device that MAY be used to play gambling software? Sorta true, but where the hell is is suit agains Palm? Or HP? Or IBM?


    Does he even mention if the patent is for conductive touch-sensative technology or infrared touch? What about movies that show the concept, are they infringing too? Star Trek, Minority Report, I’m looking at YOU!


    This really makes me laugh.

  14. Peter W Dawson says:

    Seriously, this reminds me of that old Sony lawsuit. It was like eight years after the Dual Shock was launched that Immersion (I think that was their name, I’m close in any event) sued Sony for copyright infringement. They seriously need to put a limit on how long a person can wait before filing a lawsuit on a violation like this, barring a lack of unawareness. Laws exist to protect your rights, not for you to wait five years and then claim a nice chunk of someone else’s profits as your own. That’s what divorce is for.

  15. Falcon4196 says:

    HOw can you get a patent off of that?  There isn’t anything substantial to it.  There are no scematics, no circuit diagrams, nothing on programing.  If this guy wins then there is something seriously wrong with the patent/legal systems.

  16. Neeneko says:

    Unfortunaly when you talk about patent reform you quickly run into a conflict between software patents and biotech pattents.  While the software industry would be THRILLED to reform pattens the biotech people (who tend to be better funded and better politically connected) are dead set against any weakening of patent law.

  17. Neeneko says:

    Apple may or  may not depending on how they are feeling.

    One of the problems with patent trolls is they usually make it cheaper to settle and pay a fee then to fight them.  A single case can cost millions to defend (but much less to prosecute).

  18. Neeneko says:

    Actually the patent has an intial filing date from April 2003.

    However it is a continuation of a filing from 1995 so that is the date the patent would be ‘valid’ from for infringment purposes. 

  19. JQuilty says:

    Seeing the stupid shit that gets patented these days, this doesn’t surprise me. Obvious patents, software patents…the US Patent Office essentially rubber stamps anything these days.


  20. Anonymous says:

    In his complaint, John R. Martin alleges that he patented touch screen and pointing device gaming technology in August, 2005.

    F***ing patent trolls… That, vibration/"bio feeback," motion controls, and more; when is our stupid government going to do something about them?  They deliberately make such vague patents, sit on their asses for a long time, and then sue SEVERAL YEARS AFTER some company is successful & their "infringing" product fits the patent company’s(that is all they do, make patents, never bring their vague patents to life, and sue the hell out of people to get easy money) vague patent.

    Then there is the usual tactic of going after the small companies, while avoiding the big ones.  Too bad Microsoft didn’t even bother to fight that vibration one, but I’m not surprised, why bother invalidating it when you are made of money and know the trolls will use it against the competition?

    Sigh, even obviously logical steps in "technological evolution" get patented & challenged(i.e. "one click check out," ATM machines using a "online" network, portable music player UI, etc)….

    Martin has a similar suit in the works against Apple, presumably over the iPod’s touch-sensitive scroll wheel.

    I hope Apple smites their ass!

  21. Anonymous says:

    Clearly it doesn’t apply, since the patent drawing specifically depicts the touchscreen being used by Davy Crockett

  22. sheppy says:

    Some patents may take all the way up to a year and a half to be awarded.  So this patent could have been filed before DS launched.  But the patent itself holds no water as a "same solution."  As for whether you can patent tech after it’s been released, just applied to a different scenario… just ask Immersion.  Who patented the use of vibrating pager technology as a physical feedback to computer programs. 

    The patent offices in general are overworked, undereducated on what they grant the patents for, and never held to task over mistakes made.

  23. cppcrusader says:

    The guy has no case, not even at all.  I’m surprised it wasn’t thrown out by the time we heard about it.

    Besides the fact that his patent is almost a full year too late, there’s very little in his patent to differentiate it from the already existing touchscreen bar games.  The only differentiating factor there is a built-in GPS to automatically enable gambling where legal and the mounting method (at least a for the flatscreen display, let’s just see him try to mount a CRT like that).

  24. KayleL says:

    I remember someone tried to pull the same stunt with Linux, but he lost the case thankfully.

  25. Jabrwock says:

    It’s been done before. You just need to prove prior art. Namely old notarized documents showing he came up with the idea before Nintendo did.

    Of course considering that Nintendo released the DS a year before the patent, I’m willing to bet their "prior art" is much older than his.

    — If your wiimote goes snicker-snack, check your wrist-strap…

  26. Ken ( User Karma: 0 ) says:

    This will be thrown out. He only wants money because he’s broke. Nintendo should sue him for patent infringement.

  27. Monte says:

     Ok… can someone tell me how he can claim to have the patent for DS-like technology that nintendo infringed upon when he made the patent almost a year AFTER the DS was released in the US (which also means that Nintendo had been developing the tech for several years prior)?

    Call me crazy, but i think you have to be the first to come up with an idea for it to be stolen from you… 

  28. Kamil says:

    That’s really crazy if I have interpreted things correctly. That chap has filed a lawsuit against Nintendo saying that he patented touch screen in August of 2005 and if Nintendo has launched its DS in November 2004 then how can he claim to have the patent. Really astounding to here something like this. That chap now needs to read a lot about pending lawsuit funding, he will need that kind of information to fight this lawsuit.

  29. desperad0 says:

    Thanks good job;

    Btw, I think Atari and Midway will drop out too, but mostly travesti because  these guys have done nothing travesti or little and need to start saving costs. and dizi izle


    Now I don’t have to get off my ass for the important shit anymore!

    Whats next, ordering pizza from Xbox live?

    Wait… I think that sounds like a good idea.

    But I think voting should MAKE you get off your ass, and see outside or a second while you go vote. I mean, your picking the president of the United States of America for God’s Sake… least you can do is drive down there and punch out a card.


  30. oto kirlama says:

    Gallagher can araç kiralama say all he wants, but I strongly rent a car believe it’s due to his crappy leadership and E3 being a joke. ESA’s Board of Directors need to find a way to get out rent a car of this horrid contract with this Bush cronie before there’s no one left on the Board.

    Btw, I think Atari and Midway will drop out too, but mostly travesti because  these guys have done nothing ttnet vitamin or little and need to start saving costs.


  31. Anonymous says:

    This John R Martin guy should get a life. So many people would do anything to get money these days. The Ds lanched before his patend. If he wants money i recommend a job like everyone else. For all we know he could have stole the idea from Nintendo. Any one could draw a picture like that and say its their’s.  I hope nintendo wins and does not have to pay anything to him and then sues him.E8LW

  32. Stryider says:

     just trying to get money!! thats it.. that Idea/item don’t look anything like the DS..

  33. Edgehopper says:

    Max —

    My main question for Edgehopper is, suppose we do find something that teaches the larger-release-area thingy (ok, so computers aren’t really my strong suit?). And it’s from pre-1994. Would that necessarily be enough? After the Supreme Court basically gutted the TSM test? It seems to me like you’d need a little more than a passing reference.

    One small nitpick–it turned out from the file history that I shouldn’t have taken ActionGaz’s word that the patentable aspect was the larger-release-area thingy; during examination, the inventor distinguished over a 1993 Tanaka patent by noting that his claim included the "selecting a second button while keeping the pen/finger down" element.  So, it’s that element that made it patentable.

    The Supreme Court in KSR did gut the TSM (teaching, suggestion, motivation) test a little bit, but they did so in a way that should lead to fewer patents.  Basically, the holding was to create a sort of "TSM+Duh" test–if it’s plainly obvious to combine elements, you don’t have to find an explicit written teaching, suggestion, or motivation to combine the elements to make the claim obvious.  The effect it should have here is that you’d need very little if any teaching, suggestion, or motivation to combine the touchscreen described in the Tanaka patent with the little addition of selecting a second button by sliding the pen/finger, because it’s such an obvious combination.

  34. Max says:

    I’m so glad people who have never studied patent law continue to post here. It makes the discussion so much more insightful.

    My main question for Edgehopper is, suppose we do find something that teaches the larger-release-area thingy (ok, so computers aren’t really my strong suit?). And it’s from pre-1994. Would that necessarily be enough? After the Supreme Court basically gutted the TSM test? It seems to me like you’d need a little more than a passing reference.

    The nice thing about being a patent troll is that judges are hesitant to dismiss the issue so out-of-hand when you’ve got a piece of paper saying you really do own the thing. I’m not so sure Nintendo can call this a win – but maybe I’m just experiencing deja vu from RIM all over again.


  35. Anonymous says:

    There is no resemblance with its design unless the touch screen, every gadget now uses touch screen i cant believe this moron

    If the nintendo loses its lawyers are more stupid lol than this stupid law suit

  36. Anonymous says:

     I think there is big flaw in the way a patent are made . somebody can come up with an idea and draw a drawing that could be anything and never build it or any. then if some comes up with something any close the other person gets paid . look at this guys picture does that look portal ? maybe with a forklift now if if the draw or picture was of a person holding a portiable device with another pic of the device itself and and it looked really simular to a ds i would say they have a case. anyway he did not invent touch screen i  also think drawing like that should be temp for a certain amount of time allowed to build then after that must submit a very detailed schmatic with photos of it and it broke down to componets and must be proven that it works and with a list of everything used to make it  i think that will pretty much stop anybody patented a drawing of a circle and then saing they invented the wheel

  37. Anonymous says:

    John R. Martin, you’re a dumbass! There is no resemblance in your design and the NDS design. You should just drop your shit and continue living your pitiful life.

  38. Neeneko says:

    It is a bit of a ‘submarine patent’ (but not quite).

    The patent is a continuation of another filing from 1995, so that is the date that matters for exclusive use an infringement.

  39. Zerodash. ( User Karma: 0 ) says:

    Am I missing something here, or was the patent issued AFTER the DS came out?  

  40. Anonymous says:

    Nintendo has to look at "Palm" handheld. If they had touch screen games prior to ’95, the case should be dismiss.

  41. Firestorm industry says:

    u know what this is a load of crap

    companies are such bullshiters now a days and try to take advantage of companies like nintendo who are doing good.


    they should really learn to back off.

  42. Anonymous says:

    John R. Martin sounds like he’s taking it too serious, how were they supposed to know!

  43. Anonymous says:

    His case is SERIOUSLY flawed. If he had been working on the tech, then he would have made his money purely by himself, instead of sitting on a patent for nearly a year, then sueing someone else that has their own ideas.

  44. Anonymous says:

    Oh well, nothing new to me about touch screen.  I don’t beleive that John Martin patented in August 2005 first on the touch screen. 

    Oh well, I have seen touch screen technology already patented long ago before him.  McDonald’s has the cashiers that you see them only use their hand to the screen, no keyboard for many years!!  Last time we went on trip in 2005, not remember which airlines already has the kiosk center to check in to get the boarding pass.  Anywho did design and made it long time and still work on to improve, more better system.

    He can’t claim to sue Nintendo, he is so greedy and not understand at all even the touch screen already have been started before that also still improving technology.  He should think twice,  the hospital has lot of latest touch screen equiments since they upgrade for many years.






  45. Zero Beat ( User Karma: 0 ) says:

    He doesn’t have to.  The U.S. patent system is broken.  As long as you have an idea that is vague enough to be applied to several items, yet specific enough to legally hold water, you can sit on your patent, wait for big companies to make big money, then sue them for millions of dollars.  It’s a get-rich-quick scheme that works.

    I vastly prefer the trademark system, because then you have to aggressively defend your trademark and mitigate any damages.  You can’t sit on a trademark for a long time to wait for a big company to make big money.

  46. Craig R. says:

    Certainly should have, but that doesn’t seem to stop those that sit on patents from waiting years and years until they can collect the big paycheck. Hell, there are companies that do this kind of crap, suing over patents, for a living. And it’s just disgusting that our judicial system continues to let it happen.

  47. Anonymous says:

    Looks like.

    And it was important to him to protect it, shouldn’t he have done something sooner than four years later?

  48. Neeneko says:

    "Amusement Mode" is with no money involved, Gaming Mode has stakes.

    This guy’s patent is intended for grey market gambling machines.  Merit Games, Midway, and JVL have prior art going back at least a decade and a half.

  49. Krono says:

    That, plus the minor detail that touch sensitive screens have been around for quite a while, and this little bit:

    In his complaint, John R. Martin alleges that he patented touch screen and pointing device gaming technology in August, 2005. The original Nintendo DS launched in November, 2004 in the United States.

    He’s alleging that Nintendo is infringing on a patent that wasn’t granted until almost a year after the release of the infringing product.


  50. Another case of lawyers making money over the greedy expectations of others.

    1) Wtf is "amusement" mode?  Near as I can tell, the DS is purely a gaming machine, not gambling and not amusement (I’m assuming like the PSP watching videos or iPhones being a phone?).  I would imagine this will be one leg that will break quickly.

    2) It is obvious that the main language in this patent refers to large footpring (car and boats) gambling touch screens applications and not small footprint (cell and handheld) pure gaming machines.  The fact that there is so much gambling language will be the other leg to break quickly.

    3)"An improved method of operating a touch screen on a CRT or ICD computer screen uses finger release as input registering"

    Sounds like he is describing a "button" to me… you press the button but it’s the release that is registered.  Maybe I should patent that?  "The button". LOL

  51. JustChris says:

    Well, due to a technicality, one man in Australia almost got away with patenting the wheel in our own 21st century…

  52. Evan says:

    Wow. Fail.

    Not only does this patent look unrelated to anything involving a DS, it is purposely ambiguous so this guy can sue anyone who has a similar idea.

    If he gets any money, it will continue to show how messed up our patent system is. I’m looking forward to reading his defense on how the patent was awarded after the DS was released, and the fact that the DS had been in development for a year if not more before its release.

    That said I would love to see Nintendo whip out a Game&Watch to show they had this idea long before the patent troll did.

  53. Belgarion89 says:

    We do, usually it’s called "Losing and paying legal fees."


    So speak I, some random guy.


    He’s screwed; Read the patent application "background of the invention".  Not even CLOSE to the iphone or DS.  What was he thinking?  Oh, yeah, I’m a greedy fuck that likes to draw pretty pictures and flow-charts.  Idiot!

    I so wish we had a legal system against frivalous lawsuits, as this so obviously is.

  55. Anonymous says:

    I personaly have a hard time supporting this guy when the product came out 4 years ago. I would think he should have noticed they took his idea by now if that’s what happened and he isn’t just trying to cash in.

Comments are closed.