Introduction

The MIDI Maestro is a sequence matching game that uses a MIDI keyboard to allow the user to input musical sequences. The game will have two basic modes. The first will allow two players to go head-to-head in a game that builds the measure that the current player plays upon that of the previous player to form a sort of a song. If the current player is unable to recall what had been previously played, he/she loses. The second mode will be very much like the children’s game, Simon Says. One player will be responsible for providing the melody to follow. The other player will then have to reproduce that melody or he will gain a point. Then it will be the other player’s turn to offer a melody. The game will go until a player reaches a predetermined point total.

The product will have an LCD and RPG to allow the users to manipulate game and other various options. It will also have a sound record chip, amplifier, and speaker to output various game messages, such as “Player 1 wins!”

It is obvious in glancing at the description of this project that it is very similar to products already on the market. Milton Bradley markets a product called SIMON that has light-up buttons that the user must press in the pre-determined sequence. The storing of MIDI messages with time-stamps is not a new or novel idea. Companies like Yamaha have whole products devoted to that task. Other products on the market have message recording capabilities included in their functionality.

Results of Patent Search

In searching the US patent and trademark office’s website and looking up patents for Milton-Bradley’s Simon, and patents for MIDI sequencers on the market, several patents came up that are related in function to our product.

According to Simon’s manual, the patent number for the product is 4,207,087. The patent makes the claim that Simon is a game that generates “perceptible time sequence of events” and determines the correctness of the player’s response. The patent also claims that the device comprises of a microprocessor in a portable or non-portable case with a number of buttons attached to the outside of the case. The device may or may not have lights or sounds associated with each event. The game produces a random sequence for the player to follow. Simon determines that a player has won if they exceed a predetermined number of correct responses. The patent also makes claim that the perceptible events may be musical notes. The game, according to the patent, has the option of speeding up after a predetermined number of correct responses. The game may also provide interaction between two participants to create a multi-player game.

Another similar game that has a patent registered to it is described by patent number 5855513. The game is a combination of tic-tac-toe and Simon. This game has a number of spaces on the outside of a housing with an electronic controller inside. These spaces have some sort of indicator and input device associated with them. The device has an audio signal generator for playing recorded sounds in relation to the operation of the device. The sounds may be unique to each space, and may be re-assignable to different spaces by the microcontroller. The game is played by choosing a space that has not already been chosen. The next player would then press the space that the first player chose and then choose an empty space. The game would progress in this manner until a player reproduces a “match” to a predetermined game state, regardless of what player activated any space. A player would also lose if they were unable to reproduce the sequence up to that point.

The third patent discovered that has similar operation to the project is a “performance recording apparatus for recording information used to control musical generation instruments.” (Patent no. 5,113,741) The device has means to record event data including multiple channels on one line and the ability to separate these channels to play different instruments simultaneously. The patent specifies that this event data may be in the form of MIDI messages. The device has the ability to store received messages to a medium for later playback. It has the ability to determine if a defective message has been sent to it and to correct the defective data. The device also has the ability to transform one channel into another and to determine if a message is on a channel that exceeds the maximum number of channels. This product effectively allows a user to have multiple devices listening on the same channel, yet receiving different information. It also allows multiple devices to be connected to it and recorded on one track rather than having multiple recording devices that need to be merged later.

Analysis of Patent Liability

Literal infringement is possible for the project mostly in its similarity to the game Simon. As stated above, Simon (in single player mode) produces a sequence of events that must be followed by the player. Although not elaborated upon in the patent, it is stated that the device may be used to form a multi-player game. The possible infringement arises because the MIDI Maestro is planned to have a single-player game mode where the user must follow a pre-determined sequence of musical notes. While this is not random as in Simon, it is still a sequence of events that the player must echo. This is essentially the purpose of the patent that Simon holds.

Literal infringement is also possible for the tic-tac-toe game. The game has means for recording a sequence that a player enters, and comparing that with another sequence, which is exactly what the MIDI Maestro does. The game mode is not an issue, because it is dissimilar to the game modes of the MIDI Maestro.

Infringement under the doctrine of equivalents is mostly possible with the MIDI sequencer. It appears, upon first glance, that the sequencer performs substantially the same function of recording MIDI messages as the MIDI Maestro in substantially the same way. The MIDI Maestro, however, only stores the MIDI messages temporarily, rather than on a portable or even recoverable medium as the sequencer does. This does not seem to perform substantially the same function in substantially the same way. The purpose of storing messages in the sequencer is to be able to recall them when a user wishes. The purpose in the MIDI Maestro is simply to be able to compare them in the near future, so storage in volatile memory is adequate.

Action Recommended to Avoid Infringement

In order for the MIDI Maestro to avoid infringement on the patent granted for Simon, a different type of game mode should be devised. The game mode where a recorded song is played and the player must recite it is too close to the way Simon is played.

To avoid infringement upon the patent for the tic-tac-toe game, the best way to avoid infringement would be to find another way to store messages and compare the sequence, which would be difficult. Another way to avoid infringement would be to attempt to license the concept from the owner of the patent, for a fee, of course. Obviously, another option would be just to not market the MIDI Maestro.

In the case of the doctrine of equivalents case, it does not appear that the MIDI Maestro performs substantially the same function in substantially the same way, so infringement here should not be an issue.

List of References

  • Patent no. 4,207,087. Microcomputer controlled game
    Manufacturer: Milton-Bradley,
  • Patent no. 5,855,513. Electronic matching and position game
    Manufacturer: Tiger Electronics, Ltd.
  • Patent no. 5,113,741. Performance recording apparatus for recording information used to control music generation instruments.
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