Facebook and Zynga May Escape The Latest “Patent Troll” Suit

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A new patent troll last week fired a shot at Facebook, Zynga and others with a lawsuit that claims rights to in-game payments—the process that lets players buy and sell virtual items within a video game. But one lawyer says the patent in question could be KO’d by video games from the late 1990’s.

The patent in question is US Patent No. 7076445 which claims to invent a payment system that lets users buy things “without interrupting the game.” The patent’s new owner claims the maker of a new generation of games like FarmVille, Mafia Wars and Barn Buddy are infringing its technology.

(MORE: Zynga Shares Jump on Facebook IPO Connection)

The patent owner may have a problem, however, if game makers can show that the payment system existed before 2000 when the patent application was filed. And several games from the 1990’s may help them do just that.

Jim Gatto, who leads the Social Media, Entertainment and Technology team at Pillsbury law firm, says he is looking at QuizQuiz and other games made by Korean firm Nexon that may include a similar payment system. He also says multi-player role-playing games like Achaea are “of interest.”

Gatto adds that games involving multi-player engagements and transactions grew out of virtual worlds designed in the 1980’s by MMOG pioneer Richard Bartle.

(MORE: Yahoo Threatens to Sue Facebook Over Patents)

If the earlier games contain the same payment technology as that described by US Patent No. 7076445, then Facebook and the game makers can ask a court or the US patent office to declare it invalid.

In legal terms, earlier work—including video games—is known as “prior art” which is used to determine if a patent is indeed new and non-obvious. As patent suits have engulfed the technology sector in recent years, firms like Article One Partners have emerged that reward people who can provide prior art to knock out suspect patents.

The owner of the virtual payment is a shell company called Gametek LLC but for now it’s not possible to determine who is behind the shell. The last year has seen the rise of leading patent attorneys going into business with hedge funds in order to sue companies that make products, a practice known as patent trolling.

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