Gibson Guitar has brought suit against Activision, of Guitar Hero fame, claiming that Activision’s games violate a 1999 Gibson technology patent that simulates a musical performance. Gibson sent Activision a letter in January when the action was filed asking them to obtain a license to use the Gibson patent, or to cease and desist from using the infringing software for its games.

Gibson is alleging that its patent covers a method for simulating a live performance using a musical instrument, a 3-D headset with stereo speakers, and all this during a prerecorded concert. Activision responded with a denial and a filing in U.S. District Court to ask the Court to declare Gibson’s patent claim as well as its damages claim invalid.

Activision’s Guitar Hero series of video games have netted Activision sales of more than 14 million units in North America alone since 2005 when it was introduced. This translates into about US$1 billion in sales.  Gibson is already a partner of Activision’s Guitar Hero games and Activision currently licenses the rights to use the likenesses of Gibson guitar models on its gaming consoles.

Gibson, however, is now claiming that Activision must obtain licensing rights under Gibson’s original patent for the live performance simulation. Activision responded that it did not consider the Guitar Hero games infringing, and that since Gibson had waited three years to make any claims that Gibson had granted an implied license to use the technology. The U.S. District Court will rule on the matter.