Apogee Receives Order to Cease and Desist

Apogee Software has received an order to cease and desist in the manufacture, sale, and use of animated video games from an Illinois attorney claiming that games that use motion capture, such as Duke Nukem 3D, violate a patent held by his client.

Scott Miller, the president of Apogee, called the patent "absurd" in a statement issued today, and he said that Apogee's lawyers are looking into the matter.

Mr. Ernest Kettleson, of Kettleson Law Offices, Ltd., represents the owner of US Patent No. 4,662,635, issued in May 1987. Kettleson believes the patent covers the use of "real actors or players, making actual plays of the game in question, which have been recorded on video tape, or video discs, or other recording medium."

The patent appears to cover video games specifically by including in its language scenes "...in which previously recorded plays by real living beings are used and displayed on a television screen or other cathode ray tube in accordance with selections made by each player of the video game."

The letter, received by Apogee on August 7, implies that similar letters will be sent to other video game developers.

At press time, neither Miller nor Kettleson could be reached for comment.