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

[Shamus Young]

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

This whole tussle between ZeniMax and John Carmack over his move to Oculus seems a bit strange. Here's why.

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[Agayek]

Well said. The whole kerfluffle is just pointless and stupid, and I really hope Zenimax gets slapped with an embarrassingly large fine for wasting everyone's time if it ever goes to court.

 

[Steve the Pocket]

Well said. The whole kerfluffle is just pointless and stupid, and I really hope Zenimax gets slapped with an embarrassingly large fine for wasting everyone's time if it ever goes to court.

They won't. People have been clamoring for tort reform for years, but paranoia that it would stop people from being allowed to sue corporations has prevented any sort of fines for frivolous lawsuits from being implemented in the US.

 

[Thunderous Cacophony]

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.

 

[Agayek]

They won't. People have been clamoring for tort reform for years, but paranoia that it would stop people from being allowed to sue corporations has prevented any sort of fines for frivolous lawsuits from being implemented in the US.

Yeah, but a man can dream.

 

[Adraeus]

@Shamus Young:

The first thing that strikes me as dubious about the ZeniMax claim is that it's kind of vague what they're actually accusing Carmack of stealing.

It's kind of vague because there's an NDA at play. Per Oculus VR, "Zenimax has misstated the purposes and language of the Zenimax non-disclosure agreement that Palmer Luckey signed."

Patented technology? Nope. ZeniMax doesn't have any patents on anything Carmack has done. Source code? The idea that Carmack would steal source code is absurd. If there's any source code at ZeniMax that's worth anything to him, it's stuff he wrote himself and could easily re-create at Oculus.

None of this matters. Look up "assignment of inventions [http://www.contractstandards.com/document-checklists/inventions-assignment-agreement-analysis/assignment-of-inventions]."

Now here comes ZeniMax, claiming that they own some ideas in a field they're not interested in and have no plans to pursue.

No, per Oculus VR, "Zenimax canceled VR support for Doom 3 BFG when Oculus refused Zenimax's demands for a non-dilutable equity stake in Oculus." It's pretty clear from this statement alone that ZeniMax felt justified in asking for equity based on their contributions to Oculus technology, by way of then-ZeniMax employee Carmack.

Our patent system is already horribly broken.

This story has nothing to do with patents.

Facebook bought Oculus for two billion dollars, and ZeniMax saw their relationship with Carmack as a way to lay claim to some of it. It's a bit like the way that distant relatives and old grievances suddenly appear whenever someone wins the lottery. They heard about the money and are looking for a way to get a cut.

Who cares? The timing has no bearing on whether ZeniMax has a case. If laying claim to something would cost you a million dollars, wouldn't you hold off until you were sure you were gambling for more than just attorney's fees?

They are producing nothing, and attempting to take money away from people who are trying to make a new product.

Or, ZeniMax has produced something and they're attempting to get their rightful share. That's a possibility, too.

 

[Lightknight]

I'm unsure how believing someone owns a stake in the pie is automatically equated to greed. It looks like a deal was struck with Facebook before Occulus and Zenimax had worked out an agreement on compensation for some kind of technology. That they were pursuing equity ownership pre-facebook is significant.

Tell me, who here would not speak up in such a scenario where you may very well be entitled to tens of millions of dollars or even just a few hundred thousand?

Is it greed? No. Wanting money that absolutely is not yours that you aren't entitled to is greed. Well, no, that's jealousy actually. Greed generally falls in the same line as avarice where it's specifically a desire for far more than you need. But either way, this isn't it.

Imagine this. You took $5 out of my wallet because we're friends and you wanted to invest in something interesting. I'm cool with that, again because we're friends, but I ask for a share in the return on investment in return for my contribution. We bat around some ideas about what would be fair but before we come to a conclusion your investment explodes from five bucks to a several million. What do I do then? In Zenimax's eyes and legally speaking this could be exactly that. But that depends on what kind of intellectual property they're talking about. Is it something that is really Zenimax's or is it not something like that? We'll have to wait and see. What's more is that failure to come to an agreement two years ago does not mean that Zenimax is magically backdated equity. They still need to come to an agreement if anything is still being used that Zenimax gave them with the intention of being compensated later should the company succeed.

Not greed, perse. It could be unwarranted and petty. It could be just jealousy. But not greed if they think they're entitled to it.

Maybe they're just talking about work done to support Doom 3 on the Rift prior to when they dropped the support? In which case this would be very small potatoes instead of big-time Rift equity.

 

[Adraeus]

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.

 

[Adraeus]

Maybe you missed the part where I said IN THEIR FREE TIME.

You said "even in their free time," which meant you were talking about more than one thing.

If you meant only "in their free time," you should have said that.

And besides, if I hire someone and they take my resources for their own stuff, I can just, I dunno, fire them?

You can... after they've already taken advantage of you.

If they signed an assignment of inventions agreement, you would be in a strong position to demand recompense, too.

If you had them sign an assignment of inventions agreement and made them aware of that agreement, you might have also discouraged any misbehavior at the start of your relationship with them.

 

[Shamanic Rhythm]

It's actually becoming (IT) industry standard to have employee contracts stating that the company owns everything the employee makes while being employed, even in their free time.

Yes it's that absurd but it really is a real thing.

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.

Yeah, pretty much this. I suspect this hasn't really been tested in court enough to result in a cast-iron victory for Zenimax, but they've obviously calculated that there's the potential to extract a settlement out of Facebook/Occulus.

 

[Karadalis]

I think the real interesting part about all this is that zenimax claims ownership of carmacks "ideas"

How can you lay claim to someones ideas? If this was possible you could essentially banish them from ever working in the programming industry ever again simply by claiming that their new work is based on old ideas they came up with while working for you.

Another interesting point that was talked about earlier is if zenimax now suddenly also has any ownership about carmacks findings regarding his hobby of space engenieering. After all if Carmack uses software that he wrote during his free time that would also automatically belong to zenimax...

What this claim basicly means is that they OWNED carmack body and mind and that is a street right into big brother town.

 

[Eve Charm]

Eh even in crappy lowly retail jobs if you create something the company can own the rights for it barring probably being able to get around if it has absolutely nothing to do with the company. If you work at burger king and create a new burger even if it sell billions you don't get jack because them laying claim to what you create while your employed with them.

I'd wonder how'd Zenimax plans to prove when an Idea was thought up, code is code and if it isn't the same code can't really own it.

Anyway Facebook will probably just pay them off if this gets anywhere close to actually getting to court.

 

[j0frenzy]

Just a quick note since people are already talking about the contract aspects, there is also a trade secrete possible dimension to this. Trade Secrets are a protectable form of intellectual property that can cover patentable material, or any knowledge that the company has. The general requirements of trade secrets are that they hold a value to the company and they are secret. So ZeniMax could be claiming they have something like the Occulus Rift or some other piece of technology that went into it that Carmack stole when he left them. I don't think that is what is going on here and it is likely that this is actually a contract issue, but I thought it was worth bringing up the Trade Secret issue.

 

[asinann]

Love how you guys are going with standard contracts or how your work contracts look. The contract with John Carmack would most likely not be a standard contract as he can get just about whatever terms he wants to include the removal of all those clauses giving Zenimax ownership of anything he does other than the specific work he is doing for Zenimax. Without those clauses, Zenimax has no claim to anything outside of the code he wrote for whatever specific project he was doing for them.

 

[Brockyman]

I think the unknowns here do merit further study. Shamus apparently has a hard-on for Carmack and/or Occulus (which an increasing number of games journalist seem to have), and isn't looking at all the facts.

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.

2. Carmack's contract may cover things he worked on with company time or resources. He could have been working on it as a side project at ZeniMax like the Sony employee Ken Kutarigi that made the Super Nintendo sound chip without the board's approval using Sony tech. (Did You Know Gaming - Playstation). We also don't know for sure if he used ZeniMax code (he claims he didn't, but that's why we have investigations, to make sure of these claims)

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.

Also, you just basically attacked ZeniMax. I know this is an opinion piece and you're not a real journalist with pesky worries about integrity, but you could have provided a balanced view.

 

[Kenjitsuka]

Amen, Shamus! With you all the way.