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The Importance of Evidence in IP Cases

Some of the most popular gifts around the holidays are the year’s newest video games. Teens and adults alike clamor for the hot new action games, and especially for each of the sports games. These realistic games are a great way for them to get in on the action, playing as their favorite teams and players against their friends. This year, fans may be interested to hear some behind the scenes news regarding these games. In November, the Ninth Circuit Court of Appeals affirmed the district court’s dismissal of a case brought by programmer Robin Antonick against Electronic Arts.


Antonick filed suit against his former employer in 2011, claiming he was owed royalties for derivative works created using his coding. Antonick had coded a Madden game for the Apple II computer in the 1980s, and later the company put out Sega and Super Nintendo versions of the game. His primary claim was that the source code used on these new versions infringed the code he had created for the Apple II computer. After trial, a court in the Northern District of California ignored a jury verdict in Antonick’s favor and dismissed the case. The reason? Lack of evidence.


As with many intellectual property disputes, the most important part of the case is the thing itself that is being infringed, and the infringing item. Evidence of both need to be provided so that members of the jury can compare the two and determine if they are substantially similar. Here, both the district court and the Ninth Circuit found that, because Antonick failed to introduce evidence of either source codes, the jury would have no way of knowing that the Sega and Nintendo versions were derivative works.


Some of Antonick’s key claims of similarity were the visuals of the games. Specifically, he claimed that the games had “similar formations, plays, play numberings, and player ratings; a similar, disproportionately wide field; a similar eight-point directional system; and similar variable names, including variables that misspelled ‘scrimmage browse this site.;” Clearly, these are all things that would need to be seen in order to be compared. Without a side-by-side comparison, Antonick’s claims fell short.


This dismissal just goes to show the importance of evidence in IP cases. When you are trying to compare the appearance of two things to prove similarity, and therefore infringement, provide the works themselves. That way, a jury can consider all the evidence and make a more accurate determination.

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