IP Law Daily, PATENT—S.D.N.Y.: Epic Game’s Fortnite did not infringe network latency patent, (Jul 8, 2025)

By Kevin M. Finson, J.D.

Claims relating to a system for displaying latency in a network were dismissed because the allegations of the complaint flatly contradicted the claim language.

Video game developer Epic Games, Inc., was entitled to dismissal of a claim that it infringed a patented method of displaying latency on a network, the federal district court in New York City has held. The claim language required simultaneous display of two distinct indicators, a cursor and a pointer, while the operative complaint alleged the same avatar in the accused product became one or the other at different times (AK Meeting IP, LLC v. Epic Games, Inc., No. 1:23-cv-08214-GHW-JW (S.D.N.Y. July 7, 2025)).

AK Meeting IP, LLC (AK) was the owner of U.S. Patent No. 8,627,211 (the ’211 patent), which claimed a visual display of network latency in a video game. Specifically, the patented method described a display on a user’s computer of both a “cursor,” showing where the player was pointing on his or her own computer, and a “pointer,” which reflected the player’s cursor inputs after making the round trip from the player’s computer to the server operating the game and back again. The pointer would trail the cursor, and the further behind it trailed the greater the latency, or the time for the signal to make that round trip.

AK brought suit for infringement against Epic Games, Inc., (Epic) alleging that Epic’s Fortnite product infringed the ’211 patent. The original complaint was dismissed for failure to state a claim, in part because the court found that AK’s original theory that a player avatar facing the user’s screen was a cursor and that a different player avatar facing away was a pointer had not been plausibly alleged. AK was granted leave to amend. In the operative Second Amended Complaint, AK alleged instead that the same avatar acted as both cursor and pointer at different times. Epic again moved to dismiss.

Direct infringement. The court found that the claim for direct infringement failed because it contradicted the claims of the patent itself. The patent clearly required simultaneous display of both the cursor and the secondary pointer. On the other hand, the Second Amended Complaint alleged that the player avatar which functions as a cursor originally becomes instead a pointer when the player moves his or her pointing device, with the same avatar playing different roles at different times rather than having simultaneous display of both a cursor and a pointer. The court held that the allegations contradicted or were inconsistent with infringement and therefore the direct infringement claim was dismissed.

Indirect infringement. The court noted that without a plausible allegation of underlying direct infringement there could be no claim for indirect infringement, so the indirect infringement claim was dismissed.

The court granted the motion to dismiss and denied further leave to amend.

The Case is No. 1:23-cv-08214-GHW-JW.

Judge: Woods, G.

Attorneys: William P. Ramey, III (Ramey LLP) for AK Meeting IP, LLC. Jeremy J. Taylor (Baker Botts, L.L.P.) for Epic Games, Inc.

Companies: AK Meeting IP, LLC; Epic Games, Inc.

Cases: Patent TechnologyInternet NewYorkNews