According to Avary, Microsoft consulted him in 2002 and 2003 for
his creative thoughts on games that would appeal to women, and when
he came up with the idea of the virtual yoga studio, which could
then evolve into a customisable home fitness game, the software
giant appeared to be very excited by the idea.
According to the suit, e-mails and "Scope of Work" documents
were exchanged between the parties for a while, but communications
dried up for about six months until, in September 2003, Avary was
shown a Non-Disclosure Agreement that Microsoft wanted him to
sign.
This, says the lawsuit, "would have resulted in Avary
transferring all rights to his concept to Microsoft with no
compensation to Avary." He did not sign.
Last month, Avary discovered that a new Xbox game called
"Yourself!Fitness" was due to be published. Developed by
Oregon-based responDESIGN Inc., the game shows a virtual yoga
trainer who takes viewers through a yoga session and is, according
to the suit, "in many respects identical to Avary's secrets and
concepts".
Avary filed suit in a Los Angeles federal court on Monday,
claiming that the game "incorporates concepts, materials and ideas
owned and developed by Avary, and imparted to Microsoft in
confidence".
The suit claims a breach of implied contract, fraud, unfair
competition, breach of confidence, misappropriation of trade
secrets and unjust enrichment. It seeks an injunction against
further sales of the game, and damages of at least £30 million.
Microsoft has made no comment on the suit as yet, but in a
statement responDESIGN CEO Ted Spooner called the allegations
"completely false."
"Microsoft did not participate in the development of this
product in any way, shape or form. This product was an original
creation of responDESIGN and my partner Phin Barnes," he said.
The Yourself!Fitness idea was conceived prior to the dates Avary
claims he shared his idea with outside parties, said
responDESIGN.
