In 2012, Ubisoft launched an educational video game called Rocksmith. The idea was simple: why get good at playing a toy guitar, as in games like “Guitar Hero,” when you can use—and learn to play—the real thing? Their game helps beginner musicians identify the skills they need to work on, and then helps them improve those skills by providing gradually more complex songs and exercises.

These steps will sound familiar to anyone who has tried to learn an instrument. A teacher offers exercises, evaluates your performance, and adjusts the difficulty of the lesson to match your ability—keeping you from being bored or overwhelmed. This cycle of feedback is an example of a well-established teaching technique that many educational programs use to help users hone other skills, from language fluency to typing proficiency. Educational games, like Mario Teaches Typing (1992), have been using many of these techniques for several decades. Is adding a guitar to the picture really that innovative?

According to Ubisoft, one of the world’s largest game developers, this idea is so innovative that it’s worthy of a patent. The company managed to claim this idea in US Patent No. 9,839,852,  titled "Interactive Guitar Game,” even though the date of Ubisoft’s supposed “invention” was November 21, 2008—three years after Guitar Hero was released.

Ubisoft’s patent says the claimed invention offers benefits beyond other learning materials like CDs, books, or even private instructors. But these benefits require seriously understating the efficacy of those well-established teaching materials. For example, the patent slams music books as “necessarily static” materials that “provide a limited instructional capability,” and private instructors as so “limited in both time and depth” that learning from them “may limit the student’s creativity and spontaneity.” Even if these statements were true, they are irrelevant: benefits like flexibility and limitless capacity are benefits that come from advances to computer and networking technology—not anything Ubisoft developed for its particular game.

The claims of Ubisoft’s patent don’t include anything that could be inventive. The first claim is for a computer program that performs basic steps: it presents fingering notations on a display device, receives signals back from a guitar input device that a user plays, assesses the user’s performance of the song, changes the difficulty level, and generates “at least one mini-game.” That’s it. 

This program sounds like most educational video games—it evaluates a player's performance and generates engaging ways to improve. While using your actual guitar to play some kicking ska bops sounds totally rad, Ubisoft’s patent doesn’t say anything about how to do that. It just combines old teaching techniques with old video game technology. Is this really something that can be patented? 

That question was raised in 2018 when Ubisoft sued a Finnish startup called Yousician Oy, which develops a phone app for learning to play musical instruments. Ubisoft, an industry giant with over $1 billion in revenue, claimed that Yousician's learning software infringed their "interactive guitar game" patent. If Yousician lost the suit, the company would have been required to pay damages to Ubisoft, and could have been required to cease offering interactive guitar lessons altogether.  Yousician countered that the case should be dismissed because the patent’s subject matter was not eligible for protection under Section 101 of the U.S. Patent Act.

Section 101 may be familiar to readers of our Stupid Patent of the Month posts. This part of the Patent Act helps ensure the patent system promotes innovation by limiting what can be patented. Section 101 prohibits patents on laws of nature, things that exist in nature, and abstract ideas. These are basic building blocks of science that no one could have invented, and all of us need to fuel further innovation.

These limitations are powerful weapons against software patent trolls. Software patents often claim an old idea in very broad terms, and add something non-abstract in technical jargon that effectively means “on a general-purpose computer.” Many of these patents should never have been granted, but trolls earn money from them anyway. In part, that’s because so many companies—especially smaller ones without deep pockets— settle out of court rather than risk losing more money in legal fees by challenging a patent. In 2014’s Alice v. CLS Bank decision, the Supreme Court made clear that courts can reject patents under Section 101 early in a case before the expensive discovery stage of litigation begins. That has made it possible for many small businesses to fight back, including many who have shared their experiences in our Saved by Alice project.

The Ubisoft case shows how Section 101 can also protect smaller companies and consumers from bogus monopolies the patent system would otherwise create.

On August 9th of last year, the U.S. District Court for Eastern District of North Carolina agreed with Yousician, holding that the Ubisoft patent doesn’t claim patent-eligible subject matter. Ubisoft appealed this decision, arguing the court had oversimplified the patent, but the U.S. Court of Appeals for the Federal Circuit upheld the decision this June, and the district court closed the case on July 20th.

The Federal Circuit rejected Ubisoft’s attempt to patent old teaching techniques by putting them into a video game. "Here, the claims recite nothing more than a process of gathering, analyzing, and displaying certain results," wrote the three-judge panel. "The mini-game generation step is ... no different from the ordinary mental processes of a guitar instructor teaching a student how to play the guitar." 

Cases like this are important in ensuring the U.S. patent system actually does what is meant to do—promote the advancement of knowledge and ensure its accessibility to the public. In the past year, we’ve fought back against patent trolls, powerful interest groups, and big pharma companies, all of whom are seeking to weaken Section 101 so they can monopolize and profit from knowledge that is, and should remain, available to us all. The patent system is supposed to benefit the public as a whole, not be a bludgeon for powerful entities trying to amass and maintain monopolies. When the patent system puts the preferences of patent owners above the public’s interest, we lose options as consumers as well as the freedom to create, tinker, and play. That's why EFF will keep fighting for a robust, strong Section 101. Let's ensure that companies can't monopolize old ideas by just waving their hands at basic computer technology the public has used for decades.