Monday, 15 October 2012

T5 Labs is Suing Sony's Gaikai Over a GPU Virtualization and Time-Sharing Patent on Cloud Gaming

London, UK based T5 Labs is suing cloud gaming company Gaikai, that Sony has acquired for $380 million and plans to use for a PlayStation cloud gaming service. T5 Labs is suing Gaikai at the US District Court for the District of Delaware over the US Patent 8,203,568 named “Sharing a graphical processing unit between a plurality of programs.” Sony and Gaikai have issued no comments on the subject matter to date.

The court papers say "Gaikai has and continues to infringe directly one or more claims of US Patent 8,203,568 by making, using, offering for sale, selling, and/or practicing the inventions covered by at least claim 1 of the US Patent 8,203,568, at least by providing system and methods of sharing a graphics processing unit (GPU) between a plurality of programs, e.g, virtualizing multiple instances of game programs on a server with one or more shared GPUs through Gaikai's “cloud”-based gaming applications and service (also referred to by Gaikai as a “GPU cloud") in a manner that infringes the US Patent 8,203,568."

The court papers continue "Gaikai actively, knowingly and intentionally induces infringement of the patent by making, using, offering for sale and selling use of Gaikai’s GPU cloud with the knowledge that its customers and end users will use the Gaikai GPU cloud and with the knowledge and the specific intent to encourage and facilitate the infringing sales and uses of Gaikai’s GPU cloud through the creation and dissemination of promotional and marketing materials, instruction manuals, product manuals and technical materials."

The court papers further on read "Gaikai has also contributed to the infringement by others, including the end users of Gaikai's GPU cloud by selling and offering to sell the use of Gaikai's GPU cloud knowing that this product constitutes a material part of the inventions of the US Patent 8,203,568, knowing that this product is especially made or adapted to infringe the US Patent 8,203,568, and knowing that this product is not a staple article or commodity of commerce suitable for substantial non-infringing use."

T5 Labs, which claims that it has previously provided Gaikai with written notice of the infringement, is calling for damages, as well as a cut for all future activity that it believes infringes on its patent.

When one reads the title of the US Patent 8,203,568 “Sharing a graphical processing unit between a plurality of programs,” one could think that T5 Labs was basically granted a broad patent over GPU virtualization and they will happily sue the shit out of every hardware and software company that uses and sells GPU virtualization. That includes behemoths like Intel, IBMNVIDIA, AMD, Apple, Microsoft and in this case Sony.

When one reads past the generic and broad title of US Patent 8,203,568, one finds out that what T5 Labs claims may still be arguably not new or not inventive, but it's still far from being as generic as the title. The patent is more specifically in claim 1 talking about multiple programs sequentially issuing instructions to a GPU to create instruction sets and generate video frames based on them, providing control instructions to control how the GPU processes instructions of multiple instruction sets, then the GPU sequentially processing multiple instruction sets to produce multiple video frames, sequentially encoding the multiple video frames and finally the GPU transmitting the encoded video frames to a remote device, wherein the control instructions comprise instructions to cause the GPU to store a majority or all of a specific video frame in different GPU accessible memory locations than GPU accessible memory locations of the other video frames.

This patent is a perfect example of one that should not have been granted: it is essentially time-multiplexing of a processing unit; replace GPU with CPU and you have time-sharing. Apart from changing the CPU for a GPU, T5 Labs has added the part with the GPU transmitting the encoded video frames to a remote device. T5 Labs came up with a nice mishmash of a cooking recipe for a patent and it looks like the finished dish tasted fine to the folks at the US Patent Office. This patent should never have been granted on the grounds that it is intuitively obvious to a casual observer, let alone one skilled in the art.

Large corporations like Microsoft with their Windows Azure cloud platform and Apple potentially using the cloud to power their devices in the future, could all be sued by T5 Labs.

The timeline of the US Patent 8,203,568 is also very interesting. The patent has been filed on November 16, 2011 and granted on June 19, 2012. This seems very fast compared to other patent filings that can take years to be granted, for instance it took OnLive many years for their cloud gaming patents to be granted. It's also interesting that Gaikai has been operating way before the fairly recent filing date of that patent. I do wonder that this small company could have the foresight to patent this before a large GPU company like NVIDIA and the other large computer hardware companies. Seeing that this got patented at the US Patent Office, I don't wonder anymore, as they're letting through patents for things that have already been patented and simply let the courts decide if the patent is valid, actually letting the businesses pay for finding out if the patent is valid and that way providing a great living for patent lawyers.

In the case of NVIDIA which is betting big on cloud gaming, I do wonder why T5 Labs isn't suing NVIDIA as they sell the Geforce GRID cloud gaming technology that includes the GeForce GRID GPUs and the GPU virtualization hypervisor to cloud gaming companies. I mean this US Patent 8,203,568 is called “Sharing a graphical processing unit between a plurality of programs.” I would be very surprised if NVIDIA doesn't have some valid GPU virtualization and time-sharing patents that also contain a remote connection component, and subsequently T5 Labs is afraid to invalidate their own patent, but I wouldn't say that going after Sony is also a good idea

Considering that Gaikai used the technology, that T5 Labs claims is infringing on their patent, in their cloud gaming service before T5 Labs filed the US Patent 8,203,568 on November 16, 2011, the court case could get quite heated and though Gaikai might not be able to bring forward any prior art of them, their cloud gaming service was operating quite open to the public. Gaikai could also ask other technology and cloud gaming companies for help that are working with cloud gaming tech and have similar patents. NVIDIA would be a good address to ask for help as they are supplying them with their Geforce GRID cloud gaming technology.

OnLive and Gaikai were big rivals in cloud gaming. At GDC 2009, when OnLive revealed itself to the world in style, Gaikai did the same behind closed doors, reportedly when Gaikai CEO David Perry came by the OnLive booth to greet his competitor, OnLive founder and former CEO Steve Perlman started screaming at him. Though the two cloud gaming companies were big rivals, OnLive would be a great address to ask for help as T5 Labs tried to sue OnLive in 2011 and invalidate a fundamental patent on cloud gaming that was granted to OnLive shortly before as it allegedly interfered with their own US Patent 7,916,147 titled "Centralised interactive graphical application server" that predated OnLive's. At that time T5 Labs was only threatening OnLive with a lawsuit and an interference proceeding at the US Patent Office without actually going through with it, OnLive back then labeled that claim as irrelevant. Looks like this time T5 Labs has more courage to go through with a lawsuit against Sony and Gaikai, though this lawsuit has a good chance of ending in an out-of-court settlement as usual in such proceedings.

With the US Patent 7,849,491 titled "Apparatus and method for wireless video gaming," OnLive was basically granted a principal patent on cloud gaming. Curiously OnLive founder and former CEO Steve Perlman filed for that patent on December 10, 2002 and it took the US Patent Office 8 years to grant this patent on December 7, 2010, in comparison to this US Patent 8,203,568 from T5 Labs that took the US Patent Office not even a year to grant, which might be an indication on how specialized T5 Labs is on filing patents and how uninterested in actually using the tech from those patents in a real product.

T5 Labs is a fairly unknown company with a generic and spartan web page with generic content as they don't actually list and detail any products that they have or have developed. Though the company does make generic claims that their product is cloud gaming technology, there are no known companies that are using their solutions, so it would seem that T5 Labs is a non-practising entity. Could it be that the crux of the work that gets done at the company is studying patents and technology from other companies, making recipes from said patents and technology, and cooking up dishes that get served to the folks at the US Patent Office. Could it be that a bright and enterprising fella, like T5 Labs head Graham Clemie is, came to the conclusion that cloud gaming will be huge in the future, created a generic cloud gaming company named T5 Labs and set out to file as many cloud gaming technology patents as possible to reap the benefits of the patents, that get granted, in the future.

The T5 Labs head Graham Clemie did claim that he named T5 Labs after Theory5, as he said that it took five attempts to get the technology right. Hm... is the man to trust or does "T" in "T5 Labs" stand for Troll? He he, it seems to me that those patent trolls are getting more and more lazy, not even trying to conceal what they are... or more and more impertinent. If anyone knows something published before November 16, 2011 which reads on the claims by T5 Labs, he might as well forward it to Sony and Gaikai.

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