Process-Based Patents

Recently, a Texas federal court issued an opinion against a large gaming manufacturer, based on another company’s claim of patent infringement. This case was somewhat unique in that it involved an alleged patent on a process, rather than a product. This article examines the legal issues at play and discusses the future legal action contemplated in this case.


The case involved two companies, one of which has been a gaming giant and has fought a number of legal battles over patent infringement issues.

In this case, the basis of the plaintiff’s claim was that a motion-sensing technology it had developed for detecting health problems (such as Sudden Infant Death Syndrome) and for use in items like baby monitors had been reappropriated, in violation of the plaintiff’s intellectual property (IP) rights, for a gaming device. The plaintiff argued that the technology the gaming company used to simulate falling down was actually owned by the claimant. A jury found for the plaintiff and issued a multimillion dollar award in damages.

The defendant advanced two claims: that the patent itself was invalid and that if such a patent did exist, that patent was not infringed upon. This litigation is noteworthy for a number of reasons. More and more, in fields from biology (where scientists have tried to patent medical and other processes) to gaming, the issue of whether a process is something that can be validly patented is not only controversial but is increasingly an issue. In addition, this case may, if upheld (it is being appealed), have a somewhat chilling effect on certain industries involving technology or, at a minimum, force individuals and companies to come to the table and attempt to secure licenses or otherwise negotiate patent matters with the alleged owners of a certain process.

One interesting point in this particular case is that the process at issue was not developed for gaming purposes; it was intended for medical/health reasons. A case involving a defendant who simply took that process and utilized it in the same field might be more straightforward, but when the fields are wholly unrelated, many questions arise. Also of interest is that the defendant has won several lawsuits pertaining to patent matters, so this loss is likely to be felt acutely, despite the company’s plans to appeal. Moreover, this decision came right before a United States district court ruled that diagnostic methods are unlikely to be eligible for patent protection. See, e.g., Martin Dræbye Gantzhorn & Emil Bjerrum, “USA restricts the possibility of restricting diagnostic methods,” Lexology, Sep. 5, 2017. As both of these decisions took place in district courts, it will be interesting to see how other parts of the country respond to these and related questions. Moreover, it will be worth paying close attention to how the appellate courts resolve these issues.

In cases involving patents and the gaming industry, expert witnesses play a critical role. In a case like this, particularly where two fields are at issue, experts in medical issues and gaming matters are also helpful. In addition, experts in intellectual property matters will also be of great assistance, and experts familiar with process-based patents and associated issues can prove indispensable in litigation of this type.


Litigation involving the patent of a particular process can be particularly tricky, and it requires the specialized knowledge of expert witnesses to help attorneys and courts sort these matters out. As applications for process-based patents increase, legal clashes over their alleged infringement can be expected to increase, and experts will be more valuable than ever.