Is ZeniMax Being a Patentless Troll in Its Claim Against Oculus?

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Brockyman:

Things Shamus Doesn't Know
1. ZeniMax may have been working on a piece of hardware that we don't know about. The stupid line about "ice cream tech from Honda" is misguided at best and moronic at worst. Companies dabble in things all the time, for diversification, for new profit centers, and sometimes just because they can. Microsoft was a purely software company until the XBox. Then they made the Surface and bought Nokia to make phones. Sega was a hardware/software company that shifted away from a lot of its hardware after a lot of mistakes.

This is mildly ironic in that Microsoft has not really been a purely software company since the '80s. Microsoft Sidewinder products were actually pretty top-notch in the '90s, particularly the Sidewinder Force Feedback, which is the best non-HOTAS joystick I've used to date (Saitek X-52 for best all-around). Also, all the mice and keyboards that have been Microsoft brand since... err... probably as long as most people on this board have been alive.

Vet your comments.

That said, the whole thing stinks. Of course, the odd patent/trademark defense mongers have come out in force as always, when things like this are brought up. I am not sure why they think they are actually convincing anyone that the system isn't fundamentally flawed, but ok. The very existence of patent troll-mongering, which is a very real thing suggests otherwise without any other real need for proof.

TomWest:
It doesn't take a lot of imagination to see a scenario where Carmack dreams up some VR ideas, presents it to Zenimax, who aren't interested, and then he takes the ideas elsewhere, not intending to make any money from it.

Oculus VR released a statement on Monday.

"Zenimax has misstated the purposes and language of the Zenimax non-disclosure agreement that Palmer Luckey signed."

Palmer Luckey founded Oculus VR. Luckey entered into a NDA with ZeniMax. This means that ZeniMax wanted to hold a protected conversation with Oculus VR. You don't hold a protected conversation with the CEO inventor at a company in which you have no interest.

edit: Luckey is the founder and inventor. Brendan Iribe is the CEO. I don't think Luckey has a formal title beyond "Founder."

"Zenimax canceled VR support for Doom 3 BFG when Oculus refused Zenimax's demands for a non-dilutable equity stake in Oculus."

ZeniMax asked Oculus VR for equity. You don't ask for equity unless you think you have significant leverage to get equity.

Carmack was an employee of ZeniMax, the de facto head of id Software since the departure of former longtime CEO Todd Hollenshead, and he was a vocal proponent of VR and a major supporter of Oculus VR. Carmack frequently spoke with the press about Oculus VR. Anyone who has ever worked with ZeniMax knows that ZeniMax relies on Pete Hines for everything public-facing. That Carmack, an employee of ZeniMax, was not only speaking to the press but also speaking to the press about another company indicates that ZeniMax had a much deeper relationship with Oculus VR than we know.

Since Carmack is an engineer, we can reasonably assume that Carmack was contributing to the development of Oculus Rift and those contributions were substantial enough that ZeniMax felt justified in asking for equity. FYI: Contributions don't have to be source code!

You also don't ask for equity in a company in which you have no interest.

"A key reason that John [Carmack] permanently left Zenimax in August of 2013 was that Zenimax prevented John from working on VR, and stopped investing in VR games across the company."

Carmack left id Software, a division of ZeniMax and the company he cofounded, because ZeniMax cancelled all support for VR, undoubtedly because Oculus VR refused to offer ZeniMax an equity deal. Note that Oculus VR's statement indicates that ZeniMax was investing in VR games across the company, which implies that ZeniMax was approaching Oculus VR as another platform. You also normally don't use the word "investing" unless the money involved was quite serious.

Alarien:
Of course, the odd patent/trademark defense mongers have come out in force as always, when things like this are brought up. I am not sure why they think they are actually convincing anyone that the system isn't fundamentally flawed, but ok. The very existence of patent troll-mongering, which is a very real thing suggests otherwise without any other real need for proof.

I am not sure why anyone thinks this case has anything at all to do with patents. To anyone who's actually familiar with the issues, people like Shamus crying "the patent system is fundamentally flawed!" seem to come out of left field just to beat that drum. It's equally crazy when people say the opposite.

Adraeus:
**Snip**

Wanted to say out of most everyone who posts on this site you're the least toxic and most objective person I've ever read a post by. I see how you're not necessarily defending Zenimax but rather explaining that this isn't a frivolous suit and that in speculation (considering the NDA and no evidence made public by either side) Zenimax may actually have a claim. Also your replies are quite well toned and mature. Something I thought I wouldn't see here.
Thank you for making my day and keep up with the objectivity.

Adraeus:
[
I am not sure why anyone thinks this case has anything at all to do with patents. To anyone who's actually familiar with the issues, people like Shamus crying "the patent system is fundamentally flawed!" seem to come out of left field just to beat that drum. It's equally crazy when people say the opposite.

I have a fairly good idea of what you're going to say here, but let's hear it anyway. Why is it from "left field" to put the presumption for the person who the system tells you to put the presumption for, in both criminal and tort-legal court, especially given the current circumstances?

Also, while you're at it, tell me how US Contract law, particularly assignment of inventions, is, in any way, reasonable?

No, seriously, try and defend this concept.

"In invented this idea working from home in my off-time, however, my contract with my company demands that they own it."

Can you seriously find a way to defend that clause as, in any way, reasonable?

Adraeus:

Vivi22:
The problem here is that there's nothing Zenimax has offered up as evidence that this actually happened.

There's an NDA on the field.

Ah, yes. NDAs. I'll take them seriously again after a serious overhaul because they're just too pervasive and easy to abuse as is.

OT: My apathy towards the case itself is indescribable, but the potential legal repercussions are deeply troubling. If I have one hope, it's that nobody settles so that some actual legal precedent can be set.

Thanks Adraeus, that puts a lot more flesh on our speculative bones.

Adraeus:
ZeniMax asked Oculus VR for equity. You don't ask for equity unless you think you have significant leverage to get equity.

Indeed, but the leverage may have been cross-promotion with DOOM rather than a lot of technical help.

"Zenimax canceled VR support for Doom 3 BFG when Oculus refused Zenimax's demands for a non-dilutable equity stake in Oculus."

Of course, if that's all the leverage they had, then it wasn't enough to warrant equity.

Since Carmack is an engineer, we can reasonably assume that Carmack was contributing to the development of Oculus Rift and those contributions were substantial enough that ZeniMax felt justified in asking for equity. FYI: Contributions don't have to be source code!

Interesting. If we want to go the whole "Zenimax as evil villain route", we could speculate that Zenimax had this as a backup strategy in case negotiations went bad. Unofficially look the other way while Carmack violates his contract by helping Oculus, then go the whole "I'm shocked... shocked..." if the deal doesn't go to completion.

Far more likely, of course, is it's just people being less than careful (or optimistic) and then opportunistic.

You also don't ask for equity in a company in which you have no interest.

Well, you might go for equity if the company doesn't have much money. Zenimax may have thought of it as a moderately low price lottery ticket. It keeps their tech super-star happy, might generate some press, and could make a *lot* of money if Oculus went big. Then it went south in a big way, and now they want (and may well be legally entitled to, depending on employment contracts) compensation for their failed investment.

Of course, it's all speculation.

Imperioratorex Caprae:
Thank you for making my day and keep up with the objectivity.

Thank you!

Alarien:
Why is it from "left field" to put the presumption for the person who the system tells you to put the presumption for, in both criminal and tort-legal court, especially given the current circumstances?

I said it's out of left field because patent law has nothing to do with this case. A patent doesn't need to exist for there to be an invention. Source code also doesn't need to exist. While tangible work product would make the case simpler, those are red herrings, for now.

Alarien:
Also, while you're at it, tell me how US Contract law, particularly assignment of inventions, is, in any way, reasonable? "I invented this idea working from home in my off-time, however, my contract with my company demands that they own it." Can you seriously find a way to defend that clause as, in any way, reasonable?

I already gave an example of why the assignment of inventions agreement is generally reasonable. Refer to the MicroProse example and imagine that the mutineers had absconded with technology or other IP that they created at MicroProse, in addition to the 200,000+ of MicroProse money they covertly spent on starting their own company.

I also recognized that the clause can "definitely be abused." My dad, an inventor, waited more than a decade for his employment contract with a technology company to terminate before working on his inventions, due to an overzealous assignment of inventions clause. I would have been responsible for commercializing the product. By then, however, the market had moved on.

Not all assignment of inventions agreements extend to the home though, which seems to be the assumption here. Most actually state that any inventions created by employees on company time with company resources belong to the company. That keeps honest people honest and provides the employer with a remedy in the event of malpractice.

TomWest:
Of course, it's all speculation.

It's also speculation that there is an assignment of inventions clause in Carmack's contract with ZeniMax, but I can't imagine anyone hiring a technology leader, especially considering how id Software started, and not getting that clause in.

Adraeus:
but I can't imagine anyone hiring a technology leader, especially considering how id Software started, and not getting that clause in.

Occam's razor suggests the clause exists, but I consider the strongest evidence to be the existence of the suit itself.

Somebody of Carmack's caliber has a lot more flexibility than those of us in the middle, and even I've always been able to get exemptions for specific projects. It's an insurance policy for the company, but it's not usually a deal breaker unless the company is very big and has "fit the contract or walk" policy. So there's some chance my speculation (which is pretty close to yours) is wrong.

A couple of notes to clear up where I'm coming from:

1) For those saying "This has nothing to do with patents!" Yeah. I agree. That's why I brought it up. Patents are already bad enough. Now we have a company trying to claim ownership of ideas, and they don't even have a patent. I'm not saying this is a patent fight. I'm saying it's WORSE than a patent fight.

2) I'm not suggesting ZeniMax doesn't have a case in the legal sense. They could absolutely win this. My position is that their outrage is feigned, they don't actually care about VR, and they're just looking for an excuse to get a bite of those 2 billion VR bucks. Just because you have the right to do something doesn't mean it's the right thing to do.

ZeniMax has engaged in sleazy legal stuff before that was totally legal and also obnoxious. Enduring public disapproval is just one of the costs of being a litigious jackass.

That's my take, anyway.

Talking about contracts:

image

Alarien:

Brockyman:

Things Shamus Doesn't Know
1. ZeniMax may have been working on a piece of hardware that we don't know about. The stupid line about "ice cream tech from Honda" is misguided at best and moronic at worst. Companies dabble in things all the time, for diversification, for new profit centers, and sometimes just because they can. Microsoft was a purely software company until the XBox. Then they made the Surface and bought Nokia to make phones. Sega was a hardware/software company that shifted away from a lot of its hardware after a lot of mistakes.

This is mildly ironic in that Microsoft has not really been a purely software company since the '80s. Microsoft Sidewinder products were actually pretty top-notch in the '90s, particularly the Sidewinder Force Feedback, which is the best non-HOTAS joystick I've used to date (Saitek X-52 for best all-around). Also, all the mice and keyboards that have been Microsoft brand since... err... probably as long as most people on this board have been alive.

Vet your comments.

That said, the whole thing stinks. Of course, the odd patent/trademark defense mongers have come out in force as always, when things like this are brought up. I am not sure why they think they are actually convincing anyone that the system isn't fundamentally flawed, but ok. The very existence of patent troll-mongering, which is a very real thing suggests otherwise without any other real need for proof.

I was talking about computers and gaming systems, but now I remember when they showed off the "ergonomic" keyboard that no one ever really used. So i was partially wrong, but two points
1. An Occulus is a lot more like a computer than a normal gaming/input item like a keyboard, with its own screen and various other upgardes and retails for almost as much as a PS4
2. It doesn't devalue my point that companies diversify their offerings..they just did it soon than I thought.
So my intent was clear, it was just an oversight b/c I'm not a PC gamer and I didn't remember that crappy keyboard. So, if your sincere, I apologize. If you're a troll, than go do a physical impossibility.

Where the hell did I say I defended patent trolls?! I pointed out that I didn't think the Scrolls lawsuit had that much of a basis, and I have a deep loathing of people how just buy up internet names or file patents of stuff they never build, just to have the patent.

It's people gaming a system that's in place to defend peoples intellectual property. Can that system use some work, sure! I never made the argument that it doesn't. Vet your opinions

Finally, my post was saying the following. (if you couldn't comprehend it, here's a short version.
1. Proving the author was wrong about companies diversifying and using that stupid Honda analogy
2. We don't know enough about the case to make an educated opinion. ZeniMax could be trolling or there could be some legitimate issues. That's why we INVESTIGATE things.
3. Shamus seemed more intent on bashing ZeniMax and Bethesda, pointing out issues like "buggy games", that has nothing to do with patent questions. It was stupid.

So, I didn't defend patent trolls and I made a timing error on my Microsoft example. Next?!

Is Zenimax being a total douche with this lawsuit or does it have merit?

That's the whole point of a lawsuit to begin with.
Zenimax quite likely took a long look at their position in this whole thing and then asked their legal department what they thought. The answer was probably vague enough that they decide why not go for it. That's one of the reasons we have courts. So supposedly learned people can examine both cases brought before them, and then set a precedent with whatever they decide in case the same situation pops up again. Is it a perfect system with no waste of time and money? No, that it certainly isn't. But it's often the only way to settle the finer points of law. And as long as one of the parties involved haven't bought the process with piles of cash/influence, it works fairly well most of the time.

I'm glad there is no Zenimax code in the Oculus. Given how buggy their games are, I don't fancy having my eyes burned out by lasers.

This is why suits don't belong in the video game business. Unfortunately it is also the reason that scumbags at Zenimax don't belong at a dinner table. Feed them scraps off the back porch like the rest of the dogs.

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