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

[Strazdas]

This is ZeniMax. have they done anything than buying up studios and patent trolling, ever?

 

[Fasckira]

Open and shut case of ZeniMax out for cash when they have no real ground to work from but theres a chance so they're going for it. To be honest, I can see the logic - they've got a chance to get some cash for very little expenditure on their part.

On a side note, its little bits like below that always make me smile when I read articles by Shamus:

(Disclaimer: Whenever I praise Carmack's work, there's always that one person who points out that they don't care for games from id Software. Fine, but we're not talking about gameplay here. We're talking about software. Carmack has distinguished himself by making games that are stable, smooth, and a couple of steps ahead of what everyone else can do, graphically. You don't have to be an old-school FPS fan to appreciate what the genre accomplished in the 90's.)

Love your writing fella, keep it up.

 

[Lightknight]

Things I Don't Understand
Why the ZeniMax hate, Shamus? The only real thing they have is the Scrolls patent debate which does look stupid for ZeniMax and I think was close to being settled (IGN isn't talking about it nonstop, so I'm assuming it's done). Bringing in the "buggy game" argument was also really freaking stupid. Bethesda games are ambitions and large and some bugs are to be expected in things that are ground breaking. If Carmack is as great as you praise him to be, why did they have him working on a crappy title like Rage and use him in making Skyrim or Oblivion or Fallout to polish it up a bit. Seems like poorly allocated resources.

I think it's more of a love for the Rift and everything they're trying to do than hate for Zenimax. I've got to admit that I want the Rift to succeed at all cost and anything against them might as well be my enemy. But that doesn't mean Zenimax has any less justification for their claim. If I were in negotiations with someone who took $100 out of my wallet and invested it that I should at least get a share of the return, them getting a huge return before we come to an agreement wouldn't make stop trying to do so or ignoring that it was my $100.

That being said. I think Carmack is acknowledging that he is using concepts that he created for Zenimax. He's just coding everything in a different way. That seems to be the gist of it.

Like you said, we need more information from both sides. Without specifics both sides can be viewed as reasonable. That Zenimax and Oculus were in talks at all for equity distribution indicates that Zenimax had something that they were using.

 

[hermes]

I wouldn't be surprised if Carmack actually had a clause like this in his contract with ZeniMax but he didn't take it seriously, thinking nobody can be so evil and stuff. But there you go, lawyers always try to get their share of everything.

Let's say you started a company and hired some people.

Of those employees, a few decide to start their own company, but instead of leaving your employ, they take advantage of:

• - the time for which you're paying them good money;
  - the capital you allocated to the project to which they were assigned; and
  - the resources you made available to them so they could be productive.

Finally, when they're done taking from your pocket, they pack up and leave.

Is protecting your company's assets from misappropriation "evil" then?

This isn't fantasy. This happens all the time.

The assignment of inventions clause can definitely be abused, but it's not inherently a bad thing.

Funnily enough, it happened with Carmack and Romero when working at Softdisk together...

I don't like Zenimax policies, and I wish facebook crushes them in court for all its shenanigans, past, present and future, with the force of its legal team, but I would be foolish to forget Carmack was not unfamiliar with these situations, or believing that being an influential person working on a (relatively) small project makes him a victim in this situation...

 

[Keith K]

I realize it means nothing, at this point or ever.. but I knew as soon as Carmark left id, it was only a matter of time before he'd end up with legal troubles involving Zenimax. It's their MO at the best of times but with Carmack specifically, they seemed scorned from the moment Carmack announced his departure.

 

[WindKnight]

The "Is" in the title seems odd given the content of the article; it is clearly presenting one argument (Not that doing so is negative, just that the article isn't trying for a "both sides get equal play" neutrality stance).

OT: ZeniMax clearly has a patent on thoughts. It's laid out in the employee contract and the EULA of every Bethesda game. Heck, this article alone is probably decent ground to sue.

I was talking to a friend who worked in a Games Workshop store, and he pointed out an interesting clause in his contract - in short, games Workshop owned copyright on any fiction he created while employed for them, whether it was related to a GW IP or not. So, hey, not too far out there to think someone would try that kind of crap in a contract or case.

 

[Atmos Duality]

ZeniMax's claim is unquestionably greed-driven. All business is assumed to be greed driven to some degree.
So the real question is: Does ZeniMax deserve what they claim?

Legally, that will be determined in court. (cue the resounding chorus of "No shit, Sherlock.")

Ethically, I can only guess, but based on what I've seen they had little to no real stake in the budding Virtual Reality market (a conservative approach). Meaning the only real incentive they have is to milk the Occulus Rift's sudden rise in perceived market value without actually supporting it themselves.

A smart business move if it sticks, but highly unethical and ultimately detrimental (of course, business treats ethics as a burden).

In that, yeah, it appears to be unjustified greed.

The "Is" in the title seems odd given the content of the article; it is clearly presenting one argument (Not that doing so is negative, just that the article isn't trying for a "both sides get equal play" neutrality stance).

OT: ZeniMax clearly has a patent on thoughts. It's laid out in the employee contract and the EULA of every Bethesda game. Heck, this article alone is probably decent ground to sue.

I was talking to a friend who worked in a Games Workshop store, and he pointed out an interesting clause in his contract - in short, games Workshop owned copyright on any fiction he created while employed for them, whether it was related to a GW IP or not. So, hey, not too far out there to think someone would try that kind of crap in a contract or case.

That's the horror of modern contract policies and why innovation and invention is dying out.
Large companies have way too much legal muscle to flex. I always hear that it's justified since it's the company taking a risk on the unknown, but the problem with that assumption is that it negates the risk the inventor is making.

The sad truth is that both parties need each other for progress to occur. But as the law is written, it seems that only one party can screw over the other. And as it so happens, the law sides with the money holders.

The assignment of inventions clause can definitely be abused, but it's not inherently a bad thing.

I get why Assignment of Inventions exists; it's a means of insuring against vandal development and to give investors more incentive to fund comparatively risky R&D. But claiming to effectively own every IDEA that an employee has outside of their contracted assignment is taking the concept way, way too far.

It's a hair's breadth away from claiming ownership over a person (part of them anyway).
Case in point: Carmack's contract with ZeniMax is clearly terminated, ee hasn't used any lines of code from ZeniMax properties (assuming he's telling the truth anyway), and yet they're still coming after him claiming ownership of what can only be his "know-how".
Ie, something in part of his psyche; his mind.

Practical business or not, I find that kind of sickening.

 

[Adraeus]

Why? I can fire them at the first sign that they are using my resources for their own gain.

Good luck with that! This is how these things usually go down:

Several years into developing the business, what was your first major challenge as CEO that really tested you?

Wild Bill Stealey, cofounder of MicroProse: The summer of 1989. I had a mutiny on my hands by a former Atari president and some of my executives I hired to manage my coin-op game division. In Europe, we had a managing director who couldn't or would not do accounting for funds he had advanced himself from the company. I went over to reprimand him and we find that he has £200,000 in expenses that he has never cleared from the books. So, I remove him from having anything to do with the finances and I come back to the US. The following Monday, the same guy calls me and tells me he's in Baltimore. He has flown from the UK on our company credit card! He tells me he's going to quit anyway and start a competing company. It would have been a lot cheaper to hear that news over the phone, but he wanted to spend MicroProse's money to fly to the States to meet with other members of his new company!

So, I return to the MicroProse offices to talk to my financial officer and he tells me he's quitting to join that new company. I decide to go back to the UK to sort out our operations there. As I'm on the way to the airport, I realize that the managing director and the chief financial officer can't do this by themselves; they had no development! They have a sales guy and the finance guy and they needed a development guy. I go back in and confront my head of development. He says he's thinking about it, so I fire him on the spot. They were spending MicroProse's money and using our ideas to start their new company, so I fired them all. They were guys who I brought into the company and I had to replace them. It was very disheartening.

And, you can imagine, now I've lost my financial officer, my managing director, and my key development manager. At the same time, we were raising a bunch of money, trying to get ready to go public. I was negotiating with Sid [Meier] on his future with the company. He didn't want to have to sign all of the papers or have any financial responsibilities. He didn't want his name on anything that was public. In addition, my now-ex-wife decided that she didn't want to be Mrs. Wild Bill anymore. You know, there was enough money that everybody was saying, "I want some of mine and I don't want to risk it."

(Source: Gamers at Work: Stories Behind the Games People Play [http://www.amazon.com/dp/B0075QT5Q2])

The first sign of trouble is always too late. That's why there are contracts. Contracts exist for when things go wrong.

 

[Vivi22]

Let's say you started a company and hired some people.

Of those employees, a few decide to start their own company, but instead of leaving your employ, they take advantage of:

• - the time for which you're paying them good money;
  - the capital you allocated to the project to which they were assigned; and
  - the resources you made available to them so they could be productive.

Finally, when they're done taking from your pocket, they pack up and leave.

Is protecting your company's assets from misappropriation "evil" then?

This isn't fantasy. This happens all the time.

The assignment of inventions clause can definitely be abused, but it's not inherently a bad thing.

The problem here is that there's nothing Zenimax has offered up as evidence that this actually happened. If anything, it's less likely this happened since Carmack seemed very up front about having a role with both companies (and I find it difficult to believe Zenimax wouldn't have been apprised of everything going on during the period he was working for both), and as Shamus mentioned, any code he came up with while at Zenimax he could easily recreate in another form to do the exact same thing after the fact. When it comes to writing a program to do something it's like skinning cats: there's always more than one way to do it.

But the real problem here for Zenimax from a PR perspective is that even if they have some measure of a case here, no one in the gaming community is going to believe them, or care if they do. And it's all for the simple reason that abusing the legal system and slapping someone with a frivolous lawsuit is already well established as something that's in their bag of tricks. See their suing Mojang over the title Scrolls for more on that. A case where there was never actually even the slight possibility of any brand confusion. But of course they sued anyway.

Because they're assholes.

And no one roots for someone being an asshole.

 

[Adraeus]

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.

 

[Aardvaarkman]

Carmack is pretty much the ideal engineer: Self-effacing, enormously polite, candid, calm, and analytical

And when he wakes up in the morning, it takes an extra half-hour to get ready, as he has to remove all the tongues down his pants.

 

[Amir Kondori]

Zenimax is hoping for a quick settlement I think, because otherwise Oculus and Facebook can just drag this out in the courts for the next 10 years.

 

[TomWest]

I suspect that Sgt. Sykes has it right. I 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.

The catch, however, is that if he has a standard contract, he doesn't have the right to offer his ideas anywhere else, even if Zenimax doesn't want them. I have no doubt that Carmack had riders in the contract for pre-existing project (it's pretty common to get contract riders for those), but I'd seriously doubt he has wide-ranging exceptions beyond that.

The fact that Oculus was in discussions for a small equity stake leads credence to the idea that Zenimax does have a fairly strong legal claim.

And for better or worse, being a brilliant mind doesn't mean that Carmack even paid attention close attention to exactly what was in his contract. I know a lot of people who would assume that if the company didn't want the idea, they were free to do with it as they like. (This is akin to people who know their company is disposing of assets and take them home. They can get into a heap of trouble, even though the company was going to get nothing useful from the assets.)

 

[Scow2]

While Zenimax is most famous for the infamously famous Bethesda Game Studios, it's also the owner of ID Software. I think the article missed that completely.

 

[Alarien]

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.

 

[Adraeus]

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 [http://kotaku.com/the-oculus-vs-zenimax-battle-is-heating-up-1571812928].

"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.

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.

 

[Imperioratorex Caprae]

**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.

 

[Alarien]

[
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?

 

[shirkbot]

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.