Law of Cards: A Defining Moment in Wildcat's Electronic Trading Card Lawsuit

Law of Cards: A Defining Moment in Wildcat’s Electronic Trading Card Lawsuit

Philosophers everywhere, rejoice!

The esoteric issue of whether an electronic trading card exists if it "can be" or "is" collected has been resolved, thanks to an agreement between Konami and Wildcat in the Wildcat Electronic Trading Card Patent case.

It appears that just prior to the December 20 Markman hearing (legal translation: the hearing where the parties argue before the judge about what the terms of a patent mean), Konami and Wildcat got together, set aside their differences (on this issue) and agreed that the term should be defined as "an electronic card that is configured to be collected and traded."

Philosophic Translation: We now know if a tree falls in the forest, it makes a noise only if the tree is configured to make a noise. I guess it "can be" won, so long as a card is configured to be collected.

Because Konami and Panini agreed on this term right before the Markman hearing, they deflated the industry excitement (well, maybe just my excitement) surrounding what the court's definition would have been. Essentially, because of their agreement, the court was unable to chime in on the term, leaving only two additional terms for it to issue a ruling on.

Also, although the hearing just took place on December 20, the judge already issued his order a mere three weeks afterwards! If you consider all of the holidays in between December 20 and January 4, the court issued that order pretty quick. Now, after Konami and Wildcat's agreement, there were only two terms at issue, but I once waited a year for an order on a four-term case.  Seeing action in three weeks just leaves me speechless.

The court's order begins by mentioning how lonely the hearing was since nearly all of the defendants settled the day of the hearing, leaving Konami to argue against Wildcat by itself.

Readers of Law of Cards should also despair because the remaining two terms the court addressed in the January 4 Order were really, really boring, and I can't come up with any jokes about them. Basically, the parties' arguments were over 1) whether a computer program must be "separate" and 2) whether an electronic trading card corresponds to only one code segment or multiple code segments.

Yes. Those that suffer from insomnia will want to read this order. To make it easier for you, a copy is attached here.

Now, to make sure I don't lose any readers, I'll just summarize the scoreboard:  the court didn't agree with either side's constructions, but, in the end, the claim constructions will likely help Wildcat more than Konami.

Does this mean Wildcat will win? Heck no. There's a lot of the case still to go through. But, given the avalanche of settlements that already occurred, and that the order was not a complete win for Konami, I wouldn't be surprised if we see them released from the case sooner rather than later.

But then again, I’ve been surprised before. Heck, I never thought the trading card industry would provide an answer to one of the eternal questions of philosophy: Configured trees do make noise when they fall in the forest.

For those of you who want to experience your own Markman hearing at home, here's Konami’s Powerpoint. If the Markman Order does not cure your insomnia, I have a feeling this is the double dose that will.

The information provided in Paul Lesko's "Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Browder Gianaris Angelides & Barnerd LLC or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department (http://www.simmonsfirm.com). Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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