Wii Infringement Royalties Report Tossed

TYLER, Texas (CN) - A company suing Nintendo for patent infringement miscalculated how much Wii console sales may have damaged it, a federal judge ruled.

ThinkOptics Inc. sued Nintendo in September 2011, accusing the video game giant of ripping off three of its patents "for displaying and moving a cursor on a screen using a handheld pointing device."

That technology is a key component of Nintendo's Wii console and the Wii remote controller, ThinkOptics says.

Christopher Bokhart estimated that ThinkOptics suffered damages in the amount of $5 per Wii console sold, or $3.25 per remote, but Nintendo said Bokhart's testimony should be thrown out because his report misapplies the "entire market value rule."

U.S. District Judge Leonard Davis agreed on June 21, ruling that Bokhart's royalty calculations were not precise enough.

"Mr. Bokhart's royalty rate is based, at least in part, on the total profits of accused and unaccused products," the six-page ruling states. "Mr. Bokhart states that his report apportions out the profitability of those products' non-accused features by considering the value of the non-accused features 'in totality'," wrote Judge Davis. "However, the report does not contain an apportionment calculation or otherwise sufficiently explain how Mr. Bokhart isolates the asserted patents' contribution to the total profits of the end products."

ThinkOptics' pointing technology is also not the only component of "active play," part of the appeal of video game systems like the Wii, the court found.

"In addition to the accused pointing technology, 'active play' uses non-accused components, such as accelerometers and gyroscopes," Davis wrote. "In fact, in certain instances, 'active play' does not use the accused direct pointing technology at all. Accordingly, Mr. Bokhart's report does not justify application of the entire market value rule."

Bokhart must amend his report and recalculate the royalty numbers by noon on June 27 if ThinkOptics wants to rely on the report, Judge Davis ruled.

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