Context: While patent disputes between game makers such as Nintendo’s litigation against Pocketpair over Palworld (May 11, 2025 games fray article) are few and far between, the $200B video game industry is a frequent target of patent assertions by smaller patent holders, often (but not always) non-practicing entities (NPEs).
What’s new: We have discovered a lawsuit against Discord over a former BlackBerry patent. That case is pending in Europe’s Unified Patent Court (UPC), which can order injunctions and award damages for up to 18 countries. Also, a federal jury yesterday threw out an unrelated patent infringement lawsuit against Epic Games over live concerts by Travis Scott and Ariana Grande, finding no infringement of Utherverse’s patent.
Direct impact: Utherverse can try to appeal, but it’s unlikely that Epic will ever have to pay anything. Discord has until July 2, 2025 to respond to Malikie’s UPC lawsuit, with a trial to be held and decision to be rendered in about a year’s time. Should Discord lose, Malikie may win a multi-country (e.g., Germany, France, UK) injunction. In that case, Discord will presumably meet the patent holder’s royalty demands rather than disable some of its essential functionality in major European markets.
Wider ramifications: Both Utherverse v. Epic and Malikie Innovations v. Discord are just about money, as opposed to Nintendo’s crusade against Palworld.
Malikie Innovations v. Discord
In case no. UPC_CFI_79/2025, Malikie Innovations is asserting EP3716655 (“A system and method for embedding interactive components within mobile content”) against two Discord entities: Discord Inc. of San Francisco and Discord Netherlands B.V., which is based near Amsterdam Airport.
EP3716655 will expire in about four years and was originally filed for by BlackBerry (originally named Research in Motion (RIM)), the company that made email-capable phones popular but couldn’t compete with iOS and Android smartphones. As a result, BlackBerry sold almost its entire patent portfolio (32,000 patents) to Malikie Innovations in a deal that involved some upfront payments but also further upside depending on Malikie’s monetization success, potentially worth up to $900 million.
Malikie has sued and is suing other companies. Last fall, we reported on Malikie’s dispute with Nintendo (October 22, 2024 ip fray article).
In order to get an idea of what Discord functionality it is that Malikie is presumably suing over, one has to look at the claims. “The name of game is the claim.” That is also how we look at, for example, Nintendo’s patent assertions against Pocketpair.
Let’s start with the broadest claim of the patent-in-suit, claim 1:
A system (200, 500) for providing content to a wireless device (102), the system (200, 500) comprising:
- a content server (226, 505) configurable to deliver push content to the wireless device (102);
- the content server (226, 505) including one or more modules for providing the content to the wireless device (102), the one or more modules being configured to cause the content server (226, 505) to:
- receive a content file including the content and information about one or more interactive components in the content, at least one of the one or more interactive components being an embedded interactive component that is responsive to an input received within the content, the information about the one or more interactive components comprising one or more attributes useful in rendering at least a same or different one of the one or more interactive components as part of the content;
- process the content file and package the processed content file as a content package for delivery to the wireless device; and
- send the content package to the wireless device as a push delivery.
The devil is in the details as a claim is infringed only if each and every claim limitation is practiced by the accused product. Let there be no doubt that Discord will dispute the infringement of multiple claim limitations, partly based on how it describes what its technology does and partly based on claim construction, i.e., arguments over how to interpret the claim.
There are some interpretable terms in the claim language. One key term is “interactive.” In general, interactivity means that the user performs an action and the computer will then do something in response to that action. Games are inherently interactive because you control a character or perform other actions. But Discord runs in parallel to games. It does not provide the games itself.
What the claim 1, in an oversimplified form, covers is the distribution of interactive content by a server. In order for Discord to infringe, this must be Discord’s server, not a separate game server. If you chat via Discord, but play on some other server, there is no infringement.
Looking at some of the dependent patent claims that are derived from claim 1, one can get a clue as to what Malikie is presumably tackling: streaming.
Claim 4 mentions the possibility of the embedded interactive component being “a media player application.” Claims 5 to 9 talk about a “visual interactive component.”
It looks like Malikie is suing Discord over the ability to embed YouTube streams, but also game streams. Streaming via Discord also includes the possibility of sharing Netflix content, though it is another question whether that is a violation of Netflix’s terms of service.
Discord can try to prove the patent invalid, or at least get it narrowed so as to exclude streaming. However, if the UPC’s Mannheim Local Division deems the patent valid and infringed, Discord is in trouble as this patent has the potential to reduce Discord to a simple chat server like in the Internet Relay Chat (IRC) era. And it still has four years to go, or roughly three from when the UPC’s first-instance decision will likely come down.
Utherverse v. Epic Games
Four years ago, Utherverse, a company that would like to compete with Epic Games in the Metaverse but isn’t nowhere near as successful, sued Epic in the Western District of Washington over four patents. Last week, the case finally went to trial, but over only a single patent: U.S. Patent No. 9,724,605 (“Method, system and apparatus of recording and playing back an experience in a virtual worlds system”).
Utherverse was seeking damages in the tens of millions of dollars, but the jury did not award a single cent as it did not find any of the three asserted claims of the ‘605 patent infringed by Epic’s Fortnite live concerts with Travis Scott and Ariana Grande:
Theoretically, Judge Ricardo S. Martinez of the United States District Court for the Western District of Washington could overrule the jury, but that is unlikely. Utherverse can then appeal the Seattle decision to the United States Court of Appeals for the Federal Circuit. But it’s difficult to overcome a non-infringement verdict by a jury. Utherverse would have to convince the appeals court that no reasonable jury could have reached that conclusion. In other words, Utherverse must argue that the jury decision was not a rational one.
Patent litigation is mostly a distraction for Epic. What Epic is really interested in is opening up mobile app distribution, and Appe is now at risk of a second contempt-of-court finding by Judge Yvonne Gonzalez Rogers in the Northern District of California. But that is another story.