Nintendo Settles Patent Suit with Hillcrest

Nintendo has reached an agreement with Hillcrest Laboratories, Inc, signing a license agreement under three patents that are currently the subject matter of an ITC investigation. (For more, see my previous post here) On Friday, the companies filed a joint motion with the ITC, requesting dismissal in view of a settlement that resolved the ongoing dispute between them.

According to Hillcrest's allegations in the case, Nintendo's popular Wii gaming console infringed U.S. Patent Numbers 7,158,118; 7,262,760; and 7,414,611, three patents covering a technology used on TVs that allows users to access several forms of digital content, such as digital photographs, Web sites and games. The software typically uses a main menu that prompts users to choose which program they wish to use. Maryland-based Hillcrest launched the two-pronged attack against Nintendo in August 2008, claiming Wii's remote controllers stole technology enabling players to interact with digital media, inclduing media on television sets. Both suits have reportedly been settled. All other terms remain confidential.

ADC v. Nintendo, Microsoft, and Sony Stayed Pending Reexamination

ADC Technology Inc, a Japanese corporation that owns several gaming patents related generally to music/karaoke-style video games, filed suit last October in Seattle against Nintendo, Microsoft, and Sony. The patents in suit include:

U.S. Patent 5,775,995, titled "Interactive Communication System for
Communicating Video” filed May 3, 1996 and issued July 7, 1998; U.S. Patent 6,193,520, titled “Interactive Communication System for Communicating Video Game and Karaoke Software” filed July 2, 1998 and issued February 27, 2001; U.S. Patent 6,488,508, titled “Interactive Communication System for Communicating Video Game and Karaoke Software” filed December 8, 2000 and issued December 3, 2002; U.S. Patent 6,702,585, titled “Interactive Communication System for Communicating Video Game and Karaoke Software” filed December 2, 2002 and issued March 9, 2004 (copy attached as Exhibit D); U.S. Patent 6,875,021, titled “Interactive Communication System for Communicating Video Game and Karaoke Software” filed November 14, 2003 and issued April 5, 2005.

ADC alleged that Nintendo's Wii, Sony's PS3, and Microsoft's Xbox 360 infringed one or more of the above-listed patents.

Led primarily by Nintendo, all three defendants came out swinging in their answer alleging invalidity, non infringement and inequitable conduct. Nintendo's pleading was particularly noteworthy, over 145 pages of allegations describing invalidity and inequitable conduct.

Last week, Judge Martinez agreed to stay the litigation in view of several petitions for reexamination in various staged of pendency before the USPTO. The parties stipulated to the stay.

Nintendo Prevails Over Fenner Investments in East Texas Patent Suit

Literally on the "eve of trial," Judge Leonard Davis dismissed claims for patent infringement against Nintendo that were brought by Fenner Investment in East Texas. Fenner had alleging that the Wii console and its controllers along with the GameCube infringed on a patent held by Fenner.

Judge Davis dismissed the case Monday citing that no jury trial was needed.

From Judge Davis' order:

Following the review of the parties’ oral arguments and written submissions on Defendants’ Motions for Summary Judgment and Motion for Clarification the Court concludes that the material disputes between the parties concern the meaning and scope of the patent-in-suit (“the ‘751 patent”). As such, these disputes are issues of law. O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008). The Court further finds that a correct construction of the claim terms in the ‘751 patent supports the arguments raised in Defendants’ Motions for Summary Judgment of Non-infringement. Therefore, Nintendo’s Motion for Summary Judgment of Non-Infringement (Docket No. 207) and Microsoft’s Motion for Summary Judgment of Non-Infringement (Docket No. 208) are GRANTED. A full opinion and final judgment will follow. The jury is dismissed. No appearance on March 17, 2009 is required.

Nintendo's senior in-house counsel, Rick Flamm, was reported as saying "We are very pleased with the court’s decision," "Nintendo has a long history of developing innovative products while respecting the intellectual property rights of others. We also vigorously defend patent lawsuits when wehttp://www.blogger.com/img/blank.gif firmly believe that we have not infringed another party’s patent, despite the risks that this policy entails. I would like to express our sincere appreciation for the tireless efforts of our legal team, which represented us so well."

That legal team included local Seattle Patent litigators from Perkins Coie, including Jerry Riedinger, Jessica Rossman, Michael D. Broaddus, Tyler C. Peterson, and Vincent Ajay Singh. Congratulations.

Seattle Patent Litigation Update January 2009

The Western District saw just one patent case filed last month, Chen v. Unisen, Inc. (2:2009cv00128, assigned to Judge Lasnik). Unisen does business under the name Star Trac. According to the Star Trac web site, Star Trac is "proud to be an international leader in commercial quality fitness equipment. But [it is] far from satisfied." The patent at issue is U.S. 6,745,873 covering a braking device for an exercise cycle.

One patent case file in January 2009 is in stark contrast to the 10 cases that were filed in Washington Federal Courts in January 2008.

In other Seattle patent litigation news, Microsoft settled a dispute over encryption technologies with Maz Technologies. MAZ lodged the suit in the U.S. District Court for the Eastern District of Texas in July, alleging that the Redmond, Wash.-based software giant’s Encrypting File System software, which is part of Microsoft’s Windows operating system products, infringed two patents, U.S. Patent Number 7,096,358, (an encrypting file system issued in August 2006) and U.S. Patent Number 6,185,681 (a method of transparent encryption and decryption for an electronic document management system). The ’681 patent was issued in February 2001, and the U.S. Patent and Trademark Office issued a re-examination certificate for it in May 2006.

In other news, Nintendo moved quickly last month on the heels of the Federal Circuit's grant of mandamus in the In re TS Tech case, a case finding that the district court in Marshall, Texas abused its discretion in refusing to transfer a case under 28 U.S.C. 1404. On January 26, Nintendo filed a motion seeking to transfer a case brought by Motiva LLC, an entity described by Nintendo in its motion as "a vehicle created for the purpose of this litigation, as it was incorporated less than a year after the patent at issue in this action, U.S. Patent No. 7,292,151 (“the ‛151 patent”) issued and shortly before this case was commenced." Nintendo is seeking to have the case transferred to Seattle.

Finally, Microsoft is set to begin trial shortly in East Texas in a patent case brought by online chat company Paltalk Holdings Inc. alleging that the technology giant's Xbox Live online gaming service infringes two Paltalk patents. On Monday, Judge David Folsom of the U.S. District Court for the Eastern District of Texas denied Microsoft's motion for partial summary judgment after finding that the company had not met its burden of showing that the two patents were anticipated by clear and convincing evidence. Paltalk Holdings is being represented by Seattle's Brooke Taylor, a partner in the Seattle office of Susman Godfrey. The patents-in-suit are U.S. Patent Numbers 5,822,523 and 6,266,686.

Seattle Patent Litigation Update: August, 2008

While August was a relatively slow month for new cases in Seattle (only one, Laughing Rabbit Inc. v. OpticsPlanet, Inc (08-01176 JLR), area technology companies were busy elsewhere dealing with a variety of patent issues. Notably, Microsoft settled its dispute with Immersion Corp, obtaining a one-time payment of $20.75 M. The settlement resolves a contract dispute stemming from patent litigation Immersion won against Sony Corp over game controllers with so-called "rumble" or "haptic" technology (vibrating controllers, set to move in response to on-screen gaming events, like an explosion or car crash). Immersion sued Sony in 2004 in the ND of California. The suit targeted Sony's Playstation and Playstation 2, as well as Microsoft's X-Box controllers. In 2005, Microsoft and Immersion entered into a sublicense agreement as part of a $26 M settlement, where Microsoft paid Immersion $20 M to obtain licensing rights to the technology and $6 M to buy a 10% stake in the company. Microsoft's 10% stake became pretty valuable when Sony agreed to pay Immersion more than $150 M to settle remaining claims for infringement. Last month's payment resolved any remaining interest Microsoft had in proceeds from this patent litigation. Overall, one might say that Microsoft settled this dispute for $6M (but I have no idea whether Microsoft expects any more return on its 10% "investment" in Immersion ... Regardless, this is definitely some creative lawyering at work. ... Hats off to lawyers for MSFT).

In other Microsoft patent news from last month, Portland-based patent law blogger, Gary "Patent Hawk" Odom, author of The Patent Prospector, sued Microsoft in East Texas, alleging Infringement of his patent for "Tool Group Manipulations," US Pat. No. 7,363,592. (Complaint available here) Patent Hawk is represented by Susman Godfrey, among three other law firms and no fewer than 10 lawyers, including the Susman firm's Seattle-based patent litigators, Brooke Taylor and Genevieve Vose. The suit was filed in Tyler, TX, but it is not likely to get to trial very quickly there. The Texas Rocket Dockets (even Tyler's) are not as speedy as they once were.

Nintendo was also busy last month. It was dealt a one-two punch: (1) ITC investigation and (2) Federal Court patent litigation in USDC, Northern District of Maryland, both stemming from allegations that the Wii infringes certain patents owned by Hillcrest Laboratories, Inc. Hillcrest owns US Patent Nos. 7,158,118; 7,262,760; and 7,414,611, which allegedly cover a technology used on TV sets for user access to digital content like photographs, web sites, and games. The software typically uses a main menu that prompts users to choose which program they want to use. Hmmm, sounds like my Apple TV. Hillcrest also asserts infringement of US Patent No. 7,139,983, a patent alleged to cover hand-held three dimensional pointing devices that (unlike a traditional mouse) allow a user to translate or rotate the pointing tool in space instead of merely detecting movement relative to a flat surface.

Hillcrest is a different sort of plaintiff than Nintendo is perhaps used to (at least during the "modern age" of patent litigation, i.e., since about 2004). Hillcrest makes products and is relying on US trade law to seek a general exclusion order barring importation of any product infringing its US patents; this would apply to any importer of such products, so this case has implications beyond the immediate parties. Nintendo can stay litigation in Maryland district court or decide to proceed along parallel tracks in both US District court and the ITC. Things will move fast in the ITC, not as fast as they used to, but considerably faster than they will move in USDC in Maryland. It will be interesting from a strategy perspective to see which route Nintendo chooses to go. So far, no filings have been made by Nintendo in the district court litigation.

Finally, I was catching up on some of the cases that I've written about, and I noticed that in July, Judge Jones agreed to consolidate three cases brought by Unigen Pharmaceuticals over US Patent No. 7,192,611, a patent covering methods for treating osteoarthritis. Unigen sued Walgreens and others for selling an herbal supplement that is a blend of flavans from Acacia catechu and flavanoids from Chinese Skullcap (Scutellaria Baicalensis). Unigen markets this herbal supplement under the mark Univestin. Walgreens filed a motion for summary judgment seeking to invalidate the '611 patent in view of US Patent No. 5,650,433. Judge Jones has a standing order explaining that he normally does not entertain summary judgment motions that implicate claims construction issues until after Markman briefing and (if necessary) a Markman hearing and decision on claim construction. In view of this order, Judge Jones asked for a claims construction "proffer" from Unigen, saying that it would be accepted as true for purposes of summary judgment and limited only by counsel's obligations to have a good faith basis for the construction, consistent with Rule 11. My earlier post explains this in better detail.
Well, Unigen submitted its proffer, and this was accepted by Judge Jones and held sufficient to create a genuine issue of material fact, and hence, order denying summary judgment (at least for now). From Judge Jones' Order:

[T]he court notes that the parties’ evidence shows that osteoarthritis itself is a degradation of joint cartilage.The symptoms of osteoarthritis, or the effects of that degradation, include inflammation and pain. COX-2 is the shorthand name of an enzyme that promotes inflammation. Treatments that target COX-2 seek to inhibit its production to produce an
anti-inflammatory effect.

For each of the independent claims, Unigen proposes a construction that not only
makes each preamble a claim limitation, it makes each preamble a claim limitation with
meaning beyond its plain language. See Philips v. AWH Corp., 415 F.3d 1303, 1313
(Fed. Cir. 2005) (noting that claim terms must be construed according to their “ordinary
and customary meaning” to a person of skill in the art). The “method for treating
osteoarthritis” of claims 1 and 8 becomes a “method for alleviating those symptoms of
osteoarthritis that result from COX-2 mediated inflammation.” The “method for
improving impairments . . . in a living host having arthritis” of claim 15 becomes a
“method for improving impairments . . . that result from COX-2 mediated inflammation
in a living host having osteoarthritis.” The “effective amount” and “host in need thereof”
limitations that follow the preambles of the independent claims are similarly imbued with
meanings that limit them to targeting COX-2 mediated inflammation.

Accepting this claim construction, there is no clear and convincing evidence that
the ‘433 Patent anticipates the ‘611 Patent. The ‘433 Patent is targeted at protecting
cartilage (“chondroprotection”), not at COX-2 mediated inflammation. Indeed, the ‘433
Patent teaches away from anti-inflammatory treatment, noting that “conventional
analgesic and anti-inflammatory agents . . . were not effective against the destruction of
the articular cartilage, and in fact sometimes exhibited adverse effect . . . .” ‘433 Patent
at 1:36-40. If Unigen correctly construes the ‘611 Patent to require a method that targets
COX-2 mediated inflammation, then Walgreen has not provided uncontroverted clear and
convincing evidence that the ‘433 Patent is anticipatory prior art.1
It appears, then, that Unigen’s construction of the independent claims of the ‘611
Patent as limited to targeting COX-2 mediated inflammation is critical to sustaining the
validity of the patent. Expeditiously resolving that dispute may be key in efficiently
resolving these consolidated actions.

That's all for now.

Seattle Patent Law Community Mourns the Passing of Lee Johnson

Friends, family, and local patent practitioners met yesterday to mourn the loss of Lee Johnson, a talented engineer and patent lawyer who spent over 35 years as named partner of one of Seattle's oldest IP boutiques, Christensen O'Connor Johnson Kindness (commonly referred to by the acronym COJK). Lee was an excellent lawyer and friend. Funeral services were held in Seattle's historic Plymouth Congregational Church and it was standing room only.

I had the pleasure of working with Lee for seven years at COJK and I try to emulate his dedication to this profession and his focus on client service. Lee was the ideal mentor for a young lawyer, bringing the same dedication and focus to this role as he did his legal practice. He introduced me to Seattle Rotary and led by exemplifying the Rotary motto of "service of above self." At age 65, he left us too soon after struggling with cancer for the last year.


Lee was born October 4, 1942 in Ames, Iowa and was raised in the small idyllic farming community of Avoca, Iowa. He graduated from Iowa State University in 1964 with a degree in chemical engineering and was accepted into the patent training program at The DuPont Company in Washington D.C. where he worked during the day and studied law in the evening at Georgetown University. In 1971, after working briefly for a law firm in Dallas, Lee accepted a job in Seattle with the small IP boutique Christensen & Sanborn. It was here that Lee joined Bruce O'Connor, a fellow Georgetown graduate. O'Connor and Johnson were later joined by Gary Kindness, and partnership of COJK was formed in 1976.

Over the years, COJK represented some of the Northwest's finest companies, including Microsoft, Boeing, Amazon, Nintendo, and Weyerhaeuser. Lee was instrumental in firm leadership, helping to grow the firm from 4 lawyers in the 1970s to over 50 attorneys in 2001-2, most with engineering or technical degrees.

Lee was an avid boater. He and partner Gary Kindness owned a 46 foot Grand Banks cruiser that they kept in the San Juan Islands. Named by combining their two last names Johnson and Kindness, "the Jokin" was an omnipresent guiding vessel for the annual COJK boat trip in the San Juans. The boat was always spotless too. Lee was aboard the Jokin, enjoying a vacation with his family in Desolation Sound just weeks ago.

Lee will be missed but not forgotten. He's left an important mark on my professional career, and lawyers will do well always if they only try and be more like Lee Johnson.

Seattle Patent Litigation Update (May-June 2008)

So my trial is now over. My posts will pick up and be more frequent. I'm happy to report a victory for one local inventor over Sears Roebuck and their advertising firm, Young & Rubicam. Jury returned a verdict for $1.7 million on Wednesday afternoon. It's a copyright case, so I won't go into detail here. If you are interested, here is a link to today's story in the Seattle Times.

May and June saw some interesting new patent filings in Washington. Here is a list:

June 10, 2008
Nintendo of America Inc v. Nyko Technologies Inc	WA Western	Lasnik	Patent	Federal Question
Plaintiff: Nintendo of America Inc; Defendant: Nyko Technologies Inc
May 28, 2008
Microscan Systems Inc v. Cognex Corporation	WA Western	Martinez	Patent	Federal Question
Plaintiff: Microscan Systems Inc; Defendant: Cognex Corporation
May 22, 2008
Brower v. Lowe's Companies Inc et al	WA Western	Robart	Patent	Patent Infringement
Plaintiff: Jerry E Brower, Jerry E Brower Defendant: Lowe's Companies Inc, Lowe's HIW Inc, Homax Products Inc
May 20, 2008
Westfield Outdoor Inc v. GCI Outdoor Inc	WA Western	Jones	Patent	Declaratory Judgement
Plaintiff: Westfield Outdoor Inc, Westfield Outdoor Inc, Westfield Outdoor Inc Defendant: GCI Outdoor Inc

The most interesting of these cases to me is Nintendo's action over Nyko Technologies to enforce rights in the NUNCHUCK controller for the Wii. Now that is what I like to see: a major technology player from the PNW showing confidence in our local district court to sort out complicated IP matters. This case is also interesting because it seeks to enforce design patent rights in the shape of the controllers amid great uncertainty in the law concerning design patent rights. The Federal Circuit has yet to issue a decision in the en banc review of Egyptian Goddess v. Swisa. Here is a link to post about amicus briefs offered in connection with that case, one of which I co-authored earlier this year on behalf of the Federal Circuit Bar Assocaition.

Microsoft and Nintendo Battle Game Controller Patents In ED of Texas

A recent claim construction ruling in a case involving both Nintendo and Microsoft set the stage for a Spring 2008 jury trial on a number of patents involving game controller technology owned by Plaintiff Anascape Ltd. Both Microsoft and Nintendo sought unsuccessfully to stay the entire litigation in view of an on-going reexamination of several patents-in-suit. Judge Ron Clark stayed the litigation as to some but not all of the patents. In his claims construction order, entered November 30, 2007, Judge Carter construed seven terms that relate to four patents, Patent Nos. 5,999,084, 6,102,802, 6,135,886, and 6,343,991. These patents all relate to the switches and buttons on controllers used for video games. The Order (link below PDF), awarded Anascape its definition for “pressure-sensitive variable conductance material,” finding that Microsoft's construction improperly tried to limit the definition of the disputed claim term by excluding a preferred embodiment of the term. He also agreed with Anascape's contention that no construction was necessary for terms related to individual button pressing. Anascape lost any literal infringement arguments concerning the terms “pressure-sensitive variable conductance material” and “means for creating an analog [output proportional to][signal representing] varying applied physical pressure.” According to Judge Carter, the jury will have to pass on these limitations under a theory of infringement by the Doctrine of Equivalents.

In large part, the claims construction order seemed to give Anascape what it wanted, however, Anascape just asked the Court to continue its trial date because of certain scheduling conflicts of its lead trial lawyers, McKool Smith.
AnscapeClaimsConstruction.pdf
AnscapevMSFTNoticeofClaimrejections.pdf
AnscapevMSFTPTOOrderReexam.htm
AnascapevMSFTNoticeofreexam.htm

Surprise Plaintiff in Nintendo Patent Litigation is Altitude Capital Partners

I reported here and here that Nintendo, along with others, was sued in the ED of Texas for infringement US Patent Nos. 5,592,555; 5,771,394; 5,502,689; and 5,247,621. The plaintiff was purportedly Saxon Innovations LLC, a new patent licensing company. Well, according to Patent Troll Tracker, the true plaintiff (i.e., beneficial owner of the claims in litigation) is Altitude Capital Partners. From their web site:

"Altitude Capital Partners is a leading private investment firm focused on investing $250 million of capital in businesses which own compelling intellectual property assets. We seek to invest in portfolio companies that have valuable patents, trademarks/brands, copyrights, royalty streams, trade secrets, and other intangible assets which will create a competitive advantage in creating value."

ACP doesn't meet the strict definition of "patent troll." It is more of an investment bank, having a business model focused on investment in IP, or investment in companies developing IP.

But when "portfolio companies" have no other business but enforcement of IP through licensing and litigation, the model moves away from pure investment, and into funding litigation in exchange for a piece of the action. This sounds a little like the old common law doctrine of champerty. This doctrine is in a state of flux right now. To date, I have not heard of champerty being asserted against those who fund patent litigation. The issue appears to have been raised by Peter Zura's 271 Patent Blog in September of last year in connection with a post regarding a patent suit against Toyota, alleging that hybrid technology in the Toyota Prius and Toyota Highlander gasoline-electric hybrids infringes on US Patent 5,067,932. The plaintiff in that case was apparently funded by Oliver Street Finance, LLC, who apparently agreed to pay "all legal fees and expenses in exchange for a portion of any recovery Solomon receives in the litigation equal to the greater of 40% of the recovery or the actual amount of legal fees and expenses."

According to Peter Zura, the law of Champerty is still very much in effect in the state of New York, albeit in limited situations where there is an agreement whose "sole or primary purpose" is the prosecution of litigation. The key words, of course, are "sole purpose." This would seem to exclude most, if not all, artfully drafted agreements to fund patent litigation. Cases cited in support of this proposition are Refac Int'l, Ltd. v. Lotus Dev. Corp. 131 F.R.D. 56 (S.D.N.Y. 1990) (finding assignment champertous where a five-percent interest in the patent was contracted in exchange for Refac's obligation to sue at least two alleged infringers within one month. The patent was subsequently invalidated for inequitable conduct by the Federal Circuit, but no opinion was given on appeal with regard to the agreement itself). Another case is American Optical Co. v. Curtiss, 56 F.R.D. 26 (S.D.N.Y. 1971) (finding assignment of certain IP that was expressly conditioned on the assignee bringing suit was champertous, and therefore void).

With today's raging debate over patent reform, it would make sense to start seeing champerty raised as a defense to patent litigation funded by investment banks like ACP. A brief look at the law of champerty in the state of Washington reveals case law explaining (at least in dictum) that the doctrine "has never obtained a foothold" here. Weed v. Foster, 58 Wash. 675, 678, 109 P.2d 123, 124 (1910). Later cases specifically hold "that maintenance and champerty is abrogated in the state of Washington pursuant to RCW 9.12.010." Giambattista v. National Bank of Commerce, 21 Wn. App. 723, 748 (D. I. 1978 (Dore, J., dissenting in part). Even if the doctrine of champerty were in effect, Washington cases seem to limit the doctrine to providing a defense to enforcement of allegedly champertous assignments. Id. Thus, it would not seem to provide any sort of defense to patent litigation funded pursuant to an allegedly champertous agreement. Other Washington cases addressing the doctrine of champerty include Harrison Mem. Hospital v. Ross, Case No. 25538-3-II, 2001 Wash. App. lexis 1485 (Div. II July 10, 2001) and Jordon v. Welch, 61 Wash. 569, 571, 112 P. 656, 657 (1911).

Champerty defenses aside, this suit raises real issues regarding the effectiveness of FRCP 7.1, which is supposed to require disclosure of the real parties in interest to litigation. Arguably, ACP is the real plaintiff in interest in the current litigation over US Patent Nos. 5,592,555; 5,771,394; 5,502,689; and 5,247,621, but the litigants (especially the Court) have no way of knowing this through normal operation of Rule 7.1.

For a very interesting article on emerging business models in IP, have look at this article from Raymond Millien and Ron Laurie, "Established and Emerging IP Business Models."

Established2007.pdf

New Kid On The Block

The Patent Holding Company that recently sued Nintendo of America for patent infringement in East Texas (6:07-cv-490) was formed just months ago on July 2, 2007. Follow these links to see documents of formation: SaxonFormation.pdf SaxonCorrection.pdf Here is a snippet from Patent Troll Tracker about the history of this Holding Company:

"Saxon purports to be a Texas corporation, but we all know how that song and dance goes. In fact, state records show that Saxon Innovations was formed on July 2, 2007, and is a subsidiary of Saxon Holdings, LLC, a Delaware corporation formed just a tad before the Texas corporation was formed, with a business address on Madison Avenue in New York City."

Read more about the history of the patents-in-suit here.

Nintendo Targeted by Patent Licensing Company in Eastern District of Texas

Nintendo was sued last week, along with cell phone makers Nokia, LG, Research in Motion, Samsung, HTC, and Sharp, for infringement of several patents claiming private wireless communications technology. The case is Saxon Innovations LLC v. Nokia Corp. et al. (6:07-cv-490) The patents-in-suit are U.S. Nos. 5,592,555; 5,771,394; 5,502,689; and
5,247,621. All patents were originally assigned to computer chip maker Advanced Micro Devices, Inc. The plaintiff is described as a "Texas-based licensing company," although it is becoming more common these days for shell companies to be formed in East Texas for the sole purpose of pursuing patent litigation there, as reported by Patent Troll Tracker. Nintendo seems to be a target because of its popular wireless gaming devices, including the Nintendo Wii.