Thursday, November 26, 2015

Mirco's PT-109 - the first microprocessor-based video game??

The introduction of the first microprocessor games in 1975 revolutionized the coin-op industry. For both video and pinball games it lowered production costs, simplified the design process, and allowed for additional gameplay options and diagnostic functions. For pinball, it had the added benefit of lowering shipping costs by substantially reducing the games’ weight.
(NOTE that with pinball games, the transition to solid-state technology [the use of semi-conductor-based components such as ICs] and the transition to microprocessor technology generally occurred simultaneously, unlike in coin-op video games, which had used solid-state technology before the transition to microprocessors)

As most of you probably know, Midway's Gun Fight is almost universally acknowledged as the first coin-operated video game with a microprocessor. One thing I have learned while researching video game history, however, is to be skeptical of any claim that a video game was the “first” to do X. Such claims are often made on the basis of little or no research and turn out to be incorrect, or at least incomplete, when the evidence is examined. Such is the case with the first microprocessor videogame.

I posted about this subject earlier and suggested a few possibilities, one of which was Mirco's PT-109, which was introduced at the same 1975 MOA show as Gun Fight. At the time, I was not entirely certain that the game used a microprocessor. Since then, I have found that it did use one – the Fairchild F-8 (interestingly enough, the F-8 was also used in two other early microprocessor video games – Jerry Lawson’s Demolition Derby and Innovative Coin Corporation’s Spitfire). I have also unearthed a little more information about the game, including the identity of its designer, Cash Olsen. In this post then, I take a closer look at the game and discuss some other early microprocessor coin-op games (for more information on Mirco, see my earlier post)


That Mirco developed one of the first microprocessor video games is not surprising. Not only did it have extensive experience developing microprocessor-based test equipment, but a number of its employees had come from Motorola, where they had worked on its 6800 microprocessor. Chief among them was Mirco’s President Tom Connors. Known as “Tiny” because of his immense size, Connors had headed Motorola’s Semiconductor Products Group. Surprisingly, however, PT-109 did not use a Motorola microprocessor. Instead, designer Cash Olsen, chose to use a Fairchild F-8, due to its development system, sales support and ability to transfer large amounts of data efficiently. (Olsen 2015; EDN 3/5/76). Integrating the F-8 into the game’s hardware was a challenge. Olsen recalls that F-8 consisted of separate chips to support memory, Input/Output, and other functions. In addition, PT-109 was one of the first games to make use of a new component called a Field Programmable Logic Array (FPLA) – an Integrated Circuit whose logic of “ands” and “ors” could be reprogrammed in the field. In total, the game used about 300 chips – 50 for the video and the rest to support the microprocessor (Olsen 2015). If creating the game’s hardware was a challenge, so was programming its software. Though the F-8 shipped with an assembler (a program that translates low-level assembly language into machine-readable binary code), it had no native assembly ability. Instead, code had to be written on a GE time-sharing system then uploaded to a central mainframe, where it was compiled into binary and sent back – a process so time-consuming that the developers were sometimes able to get only two “turnarounds” a day. (Olsen 2015)

After a laborious effort, Mirco was able to get PT-109 ready for the 1975 MOA show, where it drew a good deal of attention owing to its use of a microprocessor. Ultimately, however, despite its innovations, the game sold poorly. Though this may have been due to technical issues, another potential problem was that PT-109 was only available in cocktail table format. By the time it appeared, the cocktail video boom had passed and the same doctors and lawyers who had purchased TV Ping Pong and Challenge were unwilling to buy another video game. As a result, PT-109 is all but unknown today, and even the most ardent video game collector is probably unaware that it had a microprocessor, much less that it was one of the first video games to use one.

The above article on PT-109 appeared in the  March 5, 1976 issue of EDN

So which was first, PT-109 or Gunfight? Both were introduced at the 1975 MOA show (for some other contenders at the same show, see my earlier post) but I am not sure exactly when they began shipping to distributors. The release of both games was announced in the trade magazines in November but I don’t know which came first. Whether or not PT-109 was first on the market, its sales were dwarfed by those of Gun Fight. As far as priority goes, let’s call it a tie for now.

What about other coin-op games?

I am not sure what the first coin-op game to use a microprocessor was. The first one I know of was Bally’s Bally Alley, a wall-mounted bowling game released in 1974 that used an Intel 4004. I have not done nearly enough research, however, to state with any certainty that it was the first.

As for pinball, a number of companies had experimented with microprocessor pinball games in 1973 and 1974, including Atari, Ramtek, Bally, and Allied Leisure. I am not sure which was first, but my guess is that it was Atari, which produced a prototype game based on Bally’s Delta Queen at its Grass Valley skunk works (when Williams and Bally later went to court over Bally’s microprocessor pinball patents, engineers from Grass Valley testified as friends of the court and Bally’s patents were ruled invalid).

It’s a bit ironic that PT-109 is so little known since the one Mirco game that anyone does remember is the pinball game Spirit of ’76, which is generally considered the first production pinball game with a microprocessor, despite that fact that it may not have been.

Spirit of ‘76

The initial idea for Spirit of ’76 had come from Dave Nutting, who had approached Mirco after Bally passed on the Intel-4004-based Flicker prototype he and Jeff Frederiksen had developed in 1974.

[Dave Nutting] When I did the first microprocessor pinball game, Bally at first didn’t want to pay the price I wanted for the patent so then I went to Mirco and had a contract with them and we came out in 1975 with a game called Spirit of ‘76. (2001)

The use of a microprocessor (in this case, the Motorola 6800) offered a number of advantages over electromechanical pinball games. One the biggest was that it allowed machine to track each player’s game state so that they could pick up from where they left off. It also allowed for the creation of more sophisticated sound effects, such as drums, whistles, and cannon fire, along with providing automated diagnostic routines and a host of operator-adjustable settings. Like PT-109, Spirit of ’76 caused a buzz at the MOA show and the games also drew the attention of the press – at least the electronics press – with articles appearing in Electronics, EDN, and Electronic Design. Mirco, however, was ultimately unable to capitalize on the publicity.

[Cash Olsen] Interest was very strong and we were riding on a big bubble after the show. Apparently, large orders were written and unrealistic delivery dates promised. We went back to Phoenix with a great deal of pressure because both games were still in prototype status; nothing was finalized and ready to turn over to manufacturing. The next several weeks were spent readying a couple of more prototypes of each game for delivery to the first customer; I believe it was [C.A.] Robinson in California. The [sales] price that …[Mirco] committed to was well below the cost of manufacturing the games as they currently existed…the silkscreens of the glass and …[playfield] of the pinball machine were of particular concern. Sourcing of the plastic and electro-mechanical parts of the play field was not firm and Bally/Midway seemed to control most of them. As shown at MOA, they used seven screens, …[which] caused the cost to be excessive, (2015)

Spirit of ’76 also suffered from technical problems. After shipping the first units in November, Mirco had to halt production until March as they worked out the issues (Walker 1976).

[Cash Olsen] I think that 2-3 months had gone by and the customer was making threats of cancellation and maybe worse. After days of all-nighters two pinball machines and one video game were readied and loaded onto a Cessna 205 to be flown to California to meet the deadline. When the pinball machines were setup on location we got a panicked call back that the machines had both played for less than two days before they could not be played anymore. The report was that all of the solenoids were hanging by their wires. (2015)

So though Mirco may have led the microprocessor revolution, it did not reap its rewards. Spirit of ’76 reportedly sold an abysmal 140 units and it remained for Bally/Midway to popularize the concept of microprocessor pinball machines and video games. Even if Mirco had been able to meet the initial demand, it may not have mattered. Technical issues aside, Spirit of ’76 was an ugly game. The dull-as-dishwater backglass consisted of little more than a stylized American flag and the playfield art was virtually nonexistent, possibly because no one at Mirco had any experience with pinball games

[Cash Olsen] Mirco knew absolutely zero about dong a pinball machine when they started Spirit of 76…they could have hired the janitor at Bally and he could have bought more corporate knowledge about pinball…than…all of the people involved at Mirco. (2015)

Like Olsen, Spirit of ‘76’s designers had come from Motorola, where they had worked as applications engineers on the 6800 microprocessor family. Neither of them had ever designed a pinball game before. Not surprisingly, Mirco made just one other pinball game – the 1978 cocktail pin Lucky Draw.

So was Spirit of ’76 the first microprocessor-based pinball game? As with Gun Fight it was introduced at the 1975 MOA show and as with Gun Fight, there were other games released at the same show that apparently also used a microprocessor.

One, Allied Leisure’s Dyn-O-Mite - which featured the likeness of Jimmie Walker from Good Times – is fairly well known. The other, Invasion Stratogy from Komputer Dynamics, is not.

Based in Indianapolis with a production plan in nearby Spencer, IN, Komputer Dynamics was organized in 1974 by Richard Payne, Chad Zulich, Ronald Young, and Charles Russell (whose father Louis was at the time the longest surviving heart transplant recipient). Invasion Stratogy (no, that’s not a misprint) was a two-ended pinball game in which two players could play head-to-head (a concept that had been tried in 1971 with Gottlieb’s Challenger). Two balls were in play at the same time and each player had four flippers. The game does not appear to have done any better than Challenger, which sold just 110 units, and Komputer Dynamics quickly disappeared.

So should these three games be considered co-holders of the “first microprocessor pinball game” title. Maybe not. As it turns out, Allied Leisure also produced a four-player version of Dyn-O-Mite called Rock On, which may have been released in September – though this too appears to be uncertain.

Saturday, November 7, 2015

Atari Depositions - Part 9

Today I thought I’d post another deposition from the Magnavox v Bally et al case.

This one, from June 25, 1974, is from Bally VP John Britz, who was involved in the negotiations between Bally and Nolan Bushnell.

Most of it is pretty dry, but there is some interesting information about Space Race and the Pong negotiations. Britz also offers a very different reason as to why Bally and Midway initially rejected Pong – not the "Jedi mind trick" version that is given by many other sources.


The deposition of JOHN ANTHONY BRITZ…taken before Michael J. Shapiro, a notary public within and for the County of Lake and State of Illinois, at the offices of Neuman, Williams, Anderson and Olson, 77 West Washington Street, Chicago, Illinois, on Tuesday, June 25, 1974, at 11:40 o'clock am.


By Mr. Anderson:

Q Please state your full name.

A John Anthony Britz .

Q Where do you reside?

A 189 Oxbury Lane, Palatine, Illinois.

Q By whom are you employed?

A Bally Manufacturing Corporation.

Q What is your position with Bally?

A Executive Vice President.

MR. ANDERSON: I will have the reporter mark as Britz Deposition Exhibit 1 a Notice of Taking Deposition.

By Mr. Anderson:

(The document above referred to was marked Britz Deposition Exhibit 1 for identification.)

Q I hand you Britz Deposition Exhibit 1, Mr. Britz, and ask if you have seen that before, or a copy of it.

A Yes, I have.

Q And that deposition notice calls upon Bally Manufacturing under the provisions of rule 30(b)6 to produce a designated officer to testify on certain listed subjects. Are you that designated officer?

A Yes.

Q Have you prepared yourself to testify in that capacity today?

A Yes.

Q How have you prepared yourself?

A I went over the past events.

Q Did you search for any documents?

A I went through some documents.

Q As a part of the notice you have been asked to produce today certain documents, and I would like to have those produced at this time, Mr. Britz, or Mr. Welsh, either one.

MR. WELSH: You have one document which I produced as I indicated on behalf of Bally, which was marked as Exhibit 3 in Mr. Ross's deposition. And I have here two other documents which respond to the request, and I would indicate that I consider these to be subject to the confidential agreement.

MR. ANDERSON: I will ask the reporter to mark as Britz Deposition Exhibit 2 a copy of a letter dated July 10, 1972, addressed to Mr. Britz, and apparently signed by Mr. Bushnell.

(The document above referred to was marked Britz Deposition Exhibit 2 for identification.)

MR. ANDERSON: And as Britz Deposition Exhibit 3, an affidavit apparently signed by Nolan Bushnell,

(The document above referred to was marked Britz Deposition Exhibit 3 for identification)

By Mr. Anderson:

Q Mr. Britz, I hand you the letter of July 10, 1972, Britz Deposition Exhibit 2, and ask you if that is a copy of a letter which you received from Mr. Bushnell?

A It is.

Q There is a reference in the beginning portion of the letter to an agreement, do

you see that?

A Yes.

Q And do you know what agreement that is referring to?

A Royalty agreement.

Q I place before you Ross Deposition Exhibit 3 and ask you if that is the royalty agreement referred to.

A Yes.

Q There is also reference in the letter to a check.

A Yes .

Q Have you produced the check today?

A No.

Q Do you know the amount of the check?

A It should be $4,000.

Q Do you have any personal recollection of that?

A No.

Q You are just going on the basis of reading the letter at this time?

A Right.

Q Or the agreement?

A The agreement.

Q The agreement in paragraph 1 at the bottom the page calls for the sum of $4,000 per month for six months beginning with July,1972. Were those sums paid, do you know?

A Yes.

Q Have you produced any evidence of those payments today?

A No.

Q Was there any correspondence at all with Mr. Bushnell or Syzygy or Atari by Bally subsequent to the letter of July 10, 1972?

A No.

Q Were there letters of transmittal with the checks?

A No.

Q How were the checks forwarded to Mr. Bushnell?

A He would invoice us and we would pay.

Q Do you have copies of the invoices?

A Not here.

Q But they do exist. in the files of Bally?

A Yes.

Q Did Bally ever make any other payments to Mr. Bushnell or anyone related to him other than the $4,000 monthly payments recited in paragraph 1 and the initial payments of $4,000?

A No.

Q Did you personally negotiate the royalty agreement on behalf of Bally Manufacturing Corporation?

A I was in on it.

Q Who else was in on it on behalf of Bally?

A Mr. Tomlinson, our house counsel.

Q And who else?

A I cannot recall if our chief engineer was in on it or not.

Q What is his name?

A Joseph Lally.

Q L-a-l-l-y?

A Right. Can we get back to the invoicing?

Q All right.

A I am not positive, but generally we do not pay unless there is an invoice, so I

am just assuming there are invoices there.

Q I gather no search was made for the payment or evidence of payment?

A It didn't pertain to any patents.

Q But it pertains to a relationship between Bally and Atari.

MR. WELSH: It is really Bally and Bushnell. don't think it has been established that it

is between Bally and Atari. The only reason that these things are produced is the referral to the royalty agreement in the agreement between Atari and Midway. I am sure it has not been established that Mr. Bushnell was with Atari at the time the royalty agreement was entered into.

By Mr. Anderson:

Q Mr. Britz, do you know when Atari, Inc. was formed?

A No, I don't.

Q Do you know whether Atari, Inc. existed at the time that you were talking to Mr.

Bushnell in the summer of '72?

A To my knowledge, they did not.

Q Do you know that Mr. Bushnell is an officer of Atari?

A At present?

Q Or at any time.

A I presume he was at one time •

Q What is the basis of that assumption?

A Because he came up with a name, which to us sounded rather odd.

Q What name was that?

A Atari.

Q And when did you first hear of Atari?

A I cannot really tell. I wouldn't know.

Q Can you relate it to July of 1972?

A It was after that.

Q Was it before February of 1973?

A I would just be guessing. My guess would be yes, but it is just a guess.

Q What was the first contact that you know of between Mr. Bushnell and Bally?

A To my recollection, it was around June, 1972.

Q And what was the contact?

A He came in, and we signed that agreement.

Q Had you any forewarning that he was coming, or did he just pop in the door?

A No, we knew that he was coming. Through what source, I don't remember.

Q What is the earliest contact that you remember prior to the day you signed the agreement?

A The earliest one I recollect is that date.

Q Had there been any contact between Bushnell and anyone at Bally that you know of prior to that date?

A There must have been, otherwise he wouldn't have come in. Who they were, I do not recall.

Q Did you make any effort to discover that in preparation to testify?

A No, I did not.

Q Knowing the organization of Bally, who would be the most likely persons to have had contact with them prior to that date?

A I wouldn't know. I don't remember. It is possible he was recommended to us by a distributor.

Q Who set up the meeting at which he came in on, I presume, the 26th of June, 1972, the date of the agreement, Ross Deposition Exhibit 3?

A I don't remember.

Q Was it on June 26, 1972, that Mr. Bushnell came to Bally?

A That's right,

Q And you say you met with him?

A That's right.

Q And Mr. Tomlinson met with him?

A That's right.

Q And perhaps Joe Lally, the chief engineer?

A That's right.

Q Anyone else at all?

A Not that I can recollect.

Q Did anyone else attend the meetings other than the people that you have mentioned?

A No one .

Q Just Mr. Bushnell alone?

A Right.

Q Did he bring anything with him?

A No.

Q Did you hand him the first check for $4,000 at the end of that meeting at the time of the execution of the agreement, Exhibit 3, Ross Deposition Exhibit 3?

A I don't recall.

Q Who made the decision on behalf of Bally to enter into the royalty agreement, Ross Deposition Exhibit 3?

A Mr. Lally and myself entered into the agreement. The royalty agreernent, yes.

Q Then you are certain that Mr. Lally was involved?

A Yes, but I don't know whether he was present at that time.

Q At what time?

A When this was signed. He was cognizant of the details.

Q Was Mr. Bushnell at Bally for a period of days or did this all occur on one day, on June 26, 1972?

A I don't remember.

Q What factual or data input did you have that formed the basis of your deciding to agree to pay $4,000 a month for six months under the royalty agreement of June 26, 1972?

A Can you rephrase that? I don't follow you there. You mean the reason?

Q Well, that is a good question. What were the reasons?

A Just past performance.

Q What past performance was that?

A On a quiz game, or rather on a TV game.

Q What TV game was that?

A One he made for Nutting ..

Q Was that a TV game that was then on the market in 1972?.

A Right, yes.

Q What was the nature of that TV game that was on the market in June of 1972?

A I don't recall the name of it.

Q What was the nature of it?

A Oh, it was a space ship theme.

Q How had you become familiar with it?

A Saw it at a MOA show.

Q What MOA show?

A I believe it was the one in the fall of 1971.

Q Where was that held? In Chicago?

A Yes.

Q. At the Conrad Hilton?

A I don't know if it was the Conrad Hilton hotel it was at.

Q Was that TV space game then available in the marketplace?

A Oh, yes.

Q Did Bally have one in its possession as of June?

A No.

Q What was the basis of your evaluation of it, then?

A Its success in the field.

Q And how did Bally learn of that, or how did you personally learn of that?

A Through reports from our distributors, hearsay.

Q Are any of those recorded?

A No.

Q Were you personally familiar with that ·game?

A To a slight extent.

Q Did you attend the MOA?

A Yes.

Q Did you see the game at the MOA?

A Yes.

Q Did you meet Mr. Bushnell at the MOA?

A No.

Q Was he there, do you know?

A I don't know

Q What happened next, after June, 1972, June 26, 1972, the date the agreement was signed between anyone related to Bally and anyone related to Bushnell?

A He went to work for us on a Flipper-type game.

Q Is that the game referred to in the July 10th letter, Britz Exhibit 2?

A Right.

Q Called Fireball, is it?

A Right.

Q When you say he went to work for you, exactly what did that entail?

A Design, developed it.

Q Did he do that at Bally or elsewhere?

A No, on the West Coast at Sygyzy [sic], as far.:' as I know.

Q Was it Sygyzy [sic] that showed the video game at the 1971 MOA?

A It was Nutting.

Q Is there any relationship that you know of between Sygyzy [sic] and Nutting?

A None that I know of.

Q Was Mr. Bushnell employed by Nutting when you talked to him, do you know?

A I don't recall.

Q Was he employed by Sygyzy [sic]?

A Eventually, that is his company.

Q Sygyzy [sic] is Mr. Bushnell's company?

A Yes.

Q Was Sygyzy [sic] then manufacturing or only a development company?

A At what time?

Q As of July 10, 1972.

A I really don't know what they were manufacturing

at that time.

Q Do you know if they were manufacturing anything?

A They were attempting to get into the manufacturing business.

Q What were they attempting to manufacture?

A That I don't know.

Q Had Mr. Bushnell been employed by Nutting prior to July 10 of 1972, do you know?

A I don't know whether he left them. The affidavit tells you.

Q You are referring to Britz Deposition Exhibit 3?

A Right.

Q Do you know if Mr. Bushnell was employed by Nutting Associates?

A I couldn't verify it.

Q Is the affidavit Britz Deposition Exhibit 3 something that you requested of Mr. Bushnell?

A Mr. Tomlinson did.

Q Why did he request it, do you know?

A I don't know.

Q Were you present when he requested it?

A No.

Q Did Mr. Tomlinson ever discuss with you the reason that he thought an affidavit should be obtained from Mr. Bushnell?

A No, not that I can recall.

Q Did Mr. Bushnell develop a Flipper game for Bally?

A Yes.

Q And was the game called Fireball?

A Yes.

Q Was it ultimately marketed by Bally?

A He called it Fireball. We never marketed it. We did come out with another game called Fireball, but it had nothing to do with his game.

Q Was the game ever marketed by Bally?

A No.

Q In the course of that work, did Mr. Bushnell come back to Chicago or the Chicago area?

A Yes.

Q On what occasion? What was the next occasion for his return to Chicago after July 10 of 1972?

A He brought in the video game Asteroid.

Q That was on the next visit that you recall-·

A That's right.

Q When was that?

A To the best of my knowledge, it was in-March of '73.

Q Did you personally meet with him on that occasion?

A Yes.

Q Had you had any communications with Mr. Bushnell between July 10 of 1972 and March of 1973?

A Telephone conversations, yes.

Q Were these recorded in any way?

A No.

Q In those conversations did he discuss with you the machine called Pong?

A Not to my knowledge.

Q When did you first hear of a game called Pong?

A I don't know for sure, but I think it was around the MOA show for '72.

No. Yes '72.

Q Was Pong at the MOA show for- '72?

A No.

Q How did you hear of it at that time?

A He brought in a mock-up.

Q Bushnell brought in a mock-up?

A He had a mock-up, that's right.

Q He brought it into Chicago, did he?

A Right.

Q And did he bring it to a Midway or Bally plant?

A Right.

Q So this would have been in the fall of '72?

A Right.

Q So then your prior testimony that the next contact with him was in Ma:rch of '73 --

A You are right.

Q -- was not accurate?

A You are right. You are right. You are right. I saw him three times. You are right.

Q Was Bushnell associated with Atari, Inc. as of the fall of '72 when he brought the Pong mock-up in, do you know?

A I don't know.

Q Did you see the Pong mock-up in the fall of '72?

A Yes.

Q Was it operative?

A Yes.

Q Where did you see it?

A In Mr. Lally's office.

Q Who else was present?

A Mr. Lally.

Q Anyone else? Mr. Bushnell?

Mr., Bushnell, obviously.

Q Mr. Lally's office is at the Bally plant?

A Right.

Q Is that the one on Belmont Avenue?

A Right.

Q And were you with Mr. Bushnell anywhere else but in Mr. Lally's office on that occasion?

A I believe it was at that time that they did take a run out to Midway.

Q And who was "they"?

A Lally and Bushnell.

Q Did you accompany them?

A I met them there later on.

Q Was that at Midway in Schiller Park?

A Right.

Q Where at Midway did you meet them?

A In one of the offices.

Q In whose office, do you know?

A I don't recollect.

Q Does Mr. Tomlinson have an office at

the Belmont Avenue plant?

A Yes.

Q Does he have an office in Schiller Paik?

A No.

Q Was he in Schiller Park?

A No.

Q Does he do work for Midway or does Mid<way have separate counsel?

A He might on occasion do a slight amount of work for Midway, yes.

Q On those occasions does he bill Midway for his time, do you know?

A No.

Q Is there any sort of an accounting for his time by Midway?

A No.

Q Is that just a donated service by Bally?

A True. True.

Q Are there any other employees of Bally that do that sort of work for Midway? .

A At one time we had a team of engineers out there for a while and we did not charge them for the time. That goes back aways

Q How far back?

A That must go back about three years ago

Q Does Bally have an accounting department?

A Oh, yes.

Q Is that computerized?

A Not completely. It is going to be.

Q Does the accounting department perform services for Midway?

A No.

Q Does Midway have a completely separate accounting department?

A Right. They use our computer, though, for payroll.

Q Do you sell them that computer time?

A I believe it is charged, but I am not sure, though.

Q When you went out to Midway in the fall of '72 to meet Mr. Lally and Mr. Bushnell, you

say you met in an office out there?

A Yes.

Q Was the Pong game with them at that time?

A Right.

Q In the office?

Q Was anyone else present?

A Mr. Wolverton.

Q Anyone else?

A That is all I know of.

Q Was Mr. Ross present?

A Not that I know of.

Q Was there any discussion during that meeting at Midway that you attended?

A No.

Q No discussion at all?

A No.

Q No one spoke to anyone?

A Well, all we did was play the game, and that was it, you know.

Q In the letter of July 10, Britz Deposition Exhibit 2, on the second page, there is reference to a video game. Was that video game ever submitted by Bushnell to Bally?

A Yes. Not this particular one. It was Asteroid.

Q Was Pong submitted to Bally by Mr. Bushnell?

A Well, as I said, he showed it to us, but it wasn't part of the contract.

Q And how do you distinguish the two video games in that regard?

A Well, at the time Mr. Lally and I did not see the merits of so-called Pong, and not only that, at that time Midway either had or was contemplating a tennis-type game.

Q You say either had --

A I don't recall whether they had it at the time or whether they were engineering it at the, time, but they had a tennis-type game.

Q A video game?

A No, just a tennis-type game, electronic wall type.

Q As best you recall, relate whatever discussion occurred at the meeting in Midway's office where Pong was demonstrated by Mr. Bushnell.

A Well, everybody concerned thought it was a rather interesting game, but nobody actually got all excited over it, and that was the extent of it.

Q Was Mr. Bushnell trying to interest Bally in making the Pong-type game?

A He would have liked it to have been part of that contract.

Q Did he take the position that it was not part of the contract?

A No, he did not take that position.

Q When you say "the contract" are you

referring to --

A The royalty agreement.

Q to the royalty agreement, Ross Deposition Exhibit 3?

A Right, royalty agreement, the royalty agreement.

Q Now, in part that royalty agreement says, "Bushnell will staff his operation adequately to provide within the above six-month period the following prototypes to Bally: 1, a video amusement game. Was the Pong a video amusement game?

A Yes.

Q And did Mr. Bushnell take the position, then, that the Pong did satisfy that requirement of his royalty agreement?

A No, he did not take that position.

Q And do you recall now what reasons he gave for excluding Pong from that category?

A We ourselves, because we ourselves couldn't see the merit of the game. That is the


Q And when you say "we ourselves" do you mean-

A Mr. Lally and myself.

Q And did anyone at Midway look at it at that time? .··~

A Yes, Mr. Wolverton did, also, and he just passed it by at that time. He passed it by.

Q He shared your opinion that it did not have much promise? Did he?

A I don't recall if his opinion was.exactly that, but the mere fact that he passed it by speaks for itself.

Q What was the next contact that you know of following the fall, 1972, meetings that you

attended with Mr. Bushnell and Mr. Bushnell or Atari relating to video games? •

A The next contact?

Q Yes.

A You are talking about personal or --

Q Any communication or contact of any kind.

A Well, from time to time I would call him to expedite these games.

Q When you say "these games" do you mean the video game?

A The video game and the pin game.

Q What video game were you trying to

expedite at that time?

A Well, at that time he was talking about the Asteroid.

Q When did you first discuss with Mr. Bushnell an Asteroid type of game?

A I don't recall.

Q As of July of '72 Mr. Bushnell was talking about a hockey-type game, am I correct?

A Right.

Q Do you know when the subject of a hockey type game was dropped, if it was?

A I don't remember.

Q Was it dropped?

A Yes, in favor of the Asteroid.

Q Was the Pong game that Mr. Bushnell brought to Midway and Bally in the fall of '72 a

production prototype, do you know?

A No.

Q When did Mr. Bushnell first provide a production prototype of any video game?

A I don't know.

Q Did Bally make all of the payments required under the royalty agreement, Ross Deposition Exhibit 3?

A Yes.

Q And by its terms I gather that agreement ran out at least as far as the royalty advances six months from July or in January of 1973 is that correct?

And what happened between Bally and Bushnell after that?

A Nothing, really.

Q I show you Ross Deposition Exhibit 2 and ask you if you have ever seen that before.

A I glanced at this casually, I believe it was in Mr. Tomlinson's file. That is the only time I saw it.

Q When was that?

A Oh, perhaps two weeks ago.

Q What was the occasion?

A When I knew we were going to have this deposition, so he gave me what was in his file, and that was in it and I just glanced over it casually.

Q Does Mr. Tomlinson maintain files on Midway matters?

A No, not necessarily.

Q Does he maintain files on Midway matters?

A Oh, not on Midway matters.

Q Where was this agreement in his files?

A In the Magnavox folder.

Q Does he maintain any files on Midway. Do you know?

A Not that I know of.

Q But you say he does provide Midway with services.

A From time to time.

Q Did he provide Midway with services with respect to Magnavox?

A He became involved.

Q On behalf of Midway?

A I would say both •

Q Both on behalf of Midway and on behalf of Bally?

A As far as I know.

Q Had you ever seen the agreement, Ross Deposition Exhibit 2, before you saw it in Mr. Tomlinson's file?

A No.

Q Were you aware that it existed prior to that date?

A l was aware that something existed, yes. What it was, I didn't know.

Q Do you have any knowledge of any of the events that led up to the agreement, Ross Deposition Exhibit 2?

A Very vague.

Q What knowledge do you have?

A I know that Ross went out and visited him, or Mr. Blahuta did. I think Ross did. That is the extent of it.

Q Were you involved in any discussion at all with respect to the agreement, Ross Deposition Exhibit 2?

A No.

Q When you met with Mr. Bushnell in March of '73, where did that meeting take place?

A My office.

Q Did you then know that he had entered into an agreement with Midway?

A No.

Q Did he not mention that he had entered into· an agreement with Midway?

A I don't know when the agreement with Midway was.

Q Well, the agreement with Midway, Ross Deposition Exhibit 2, is dated February 22; 1973.

A I don't think there was an agreement with Midway before they met, maybe it was February, then, rather than March that he came to my office. I don't recall there being an agreement at that time.

Q When he came to your office in February or March of '72, did you say that he brought--

MR. WELSH: I think he said '73.

MR. ANDERSON: '73, excuse me.

Q February or March of 1973. Did you say that he had a prototype with him on that occasion?

A Right.

Q And it was a prototype of the Asteroid?

A Right .

Q And what was the purpose of his visit in February or March of 1973 to your office?

A To bring in his prototype to fulfill the royalty agreement.

Q And at that time did he mention that there was a new agreement between him and Midway?

A No.

Q Or that one was contemplated?

A No.

Q That was, I gather, already six months beyond the date of the royalty agreement, Ross Deposition Exhibit 3, am I correct?

A Yes.

Q Did the subject· come up of the fact that he was late in coming; in wiith that prototype?

A Yes.

Q And what was that discussion?

A I asked him to come it took him so long, and he said, well, they had quite a bit of engineering to do, so we let it go at that.

Q Did Bally have any interest in the Asteroid game when it was brought to them by Bushnell?

A At the time, it took us a long time to determine whether we wanted it or not, and that is when Midway took it over.

Q Was there any discussion between Midway and Bally when Midway took it over?

A No, just that they were going to make it rather than Bally.

Q And who was that discussion between specifically?

A Mr. Ross and myself, with the approval of Mr. O'Donnell guess it must have been Mr. Wolverton,

Q And who is Mr. O'Donnell?

A. Our president.

Q President of Bally?

A Yes.

Q When dld that meeting or that discussion take place?

A I don't recall.

Q But you do recall that there was such a discussion, that Bally could give it up and Midway would take it over?

A Right.

Q Was there any discussion of whether or not Midway should pay anything to Bally for the development work?

A I don't recall.

Q Did you search your records to determine whether any such payment was made?

A No, I did not.

Q Would you do. that?

A Sure.

Q I would like to know.

Mr. Welsh, I would like to have the various documents that obviously exist and have

not been produced, namely, the checks, the invoices, any communications between Bally and Atari or Bushnell, and if we do that voluntarily, fine, if not, we can, I suppose, go about it the hard way.

MR. WELSH: Bally and Bushnell or Atari?

MR. ANDERSON: Right. And any other communications between Midway and Bushnell or Atari, or Syzygy. I didn't draw perhaps --

THE WITNESS: Can I correct you, please Syzygy?

MR. ANDERSON: -- perhaps the necessary refinements in my designations in that regard, and I would like any evidence of compensation by Midway to Bally for the design work for which Bally apparently paid, any communications relating to that.

Q I understand, Mr. Britz, that Midway did produce a game called Winner, which was a pong-type game shortly after February of 1973, am I correct?

A Yes.

Q Do you have any knowledge of the fact or information leading up to the change of point of view by Mr. Wolverton or Midway with respect to the pong game that caused them. to bring it out?

A No.

Q Are there any documents relating to that aI subject that you know about?

A Not that I know of.

Q I think you said you are Exeeutive Vice President?

A Right.

Q How long have you been Executive Vice President?

A Four years, approximately.

Q Were you with Bally prior to that time?

A Yes.

Q What was your position?

A General Manager and Vice President.

Q Do you have any operating superiors in the company?

A The president.

Q Who is that?

A William O'Donnell.

Q O'Donnell? How long were you General Manager and VP?

A Oh, I was general manager from 1963 until about 1968, I think, when I was made a vice president, roughly.

Q From 1968 to 1970, then, approximately, you were vice president?

A Approximately.

Q Is Bally a publicly held company?

A Right.

Q Briefly, what is your education following high school?

A Three years of mechanical engineering.

Q Any other?

A That's it.

Q Do you have any responsibility for the operation of Bally subsidiaries?

A No.

Q Who in Bally has responsibility for the operation of its subsidiaries?

A Mr. Bill O'Donnell.

Q Anyone else?

A The board of directors, I imagine.

Q Do you have engineering under your responsibility?

A Yes.

Q Sales?

A No.

Q Who has sales?

A Our Director of Marketing, Mr. Ross Scheer.

Q How do you spell that?

A S-c-h-e-e-r.

Q Has Bally ever made a video game?

A No.

Q Has Bally ever purchased a video game?

A No.

Q Not a single one that you know of?

A That's right. You are talking about Bally Manufacturing, 2640 West Bellmont. No subsidiaries?

Q Bally Manufacturing.

A Right. Actually, Bally Manufacturing encompasses the whole world.

Q Do you mean that in the broader sense?

A That's right. I am talking about 2640 West Belmont, the parent organization .

Q Does the parent organization do manufacturing?

A Yes.

Q And the manufacturing is in amusement games, is it?

A Yes.

Q Any other field?

A No.

Q Of the consolidated gross income of the Bally Manufacturing and its subsidiaries, what proportion is produced by the actual manufacturing by Bally, if you know, just roughly?

A I don't know. I wouldn't know.

Q Is it a third?

A Offhand, I wouldn't know.

Q Would you know if it is more or less- than a third?

A It is more than a third.

Q Bally Manufacturing's production is more than a third of the total consolidated sales of all of the subsidiaries?

A Yes, it is more than a third.

Q Is it less than a half?

A Now he is pinning me down. I don't know.

Q All right.

Do you know how Bally Manufacturing distributes its products?

A We have distributors.

Q Approximately how many, nationally?

A The last figure I know was over 80. What

it is now, I don't know.

Q Is Empire Devices one of those, Empire Distributing?

A Yes.

Q Does Bally Manufacturing generally use the same distributors that Midway uses?

A Not necessarily. I am not cognizant of that. That is not

my forte.

Q Do you have any knowledge of the operation of Empire Distributing Company?

A No, I don't.

Q Do you have any dealings with Empire Distributing?

A No, I don't.

Q Do you know who the chief executive of Empire Distributing is?

A There are two of them, Mr. Gil Kitt and Mr. Joe Robbins.

Q Gil --

A Kitt.

Q K-i-t?

A K-i-t-t.

Q Kitt, and who?

A Mr. Robbins.

Q Are you familiar with a company known as Carousel Time, Inc.?

A Yes.

Q Is that a subsidiary of Bally?

A Yes.

Q What is the nature of its business?

A They operate amusement devices in malls and so forth, arcades and so forth.

Q Are you familiar with the operation of Carousel Time, Inc. at all?

A Not thoroughly. Vaguely.

Q Who is the chief executive of Carousel Time, Inc?

A Well, that just changed hands, and I believe it is a fellow by the name of Millman.

Q Milan?

A Millman.

• M-i- -- I don't know if it is double "l" or single but I think it is M-i-l-m-a-n, I

believe it is, Jules Milman.

Q Do you know if they own and operate any video games?

A They operate games of all nature throughout the whole United States, so obviously they must have video games.

Q And that is a wholly-owned subsidiary of Bally, Am I correct?

A Right.

Q Does Mr. Tomlinson also provide legal services to Carousel~ Time, Inc.?

A Yes.

Q And does the Bally accounting department provide accounting services for Carousel Time, Inc.?

A To an extent we do, yes, for quarterly statements and so forth, yes.

Q What other services

A Not day to day, though.

Q Where is Carousel Time, Inc.?

A 2727 West Roscoe

Q 2727-

A West Roscoe

Q Is that on the same facility as the Bally plant?

A We share that facility with them, yes.

Q They just have a door on a different street than Bally, is that true?

A They have a front door.

Q They have a front door?

A Right.

Q What facility does Carousel Time, Inc. operate at the shared facility?

A They have their offices there, and also their repair department.

Q Does Carousel Time, Inc. own the real estate it operates on?

A No.

Q Does it merely use real estate of Bally?

A Bally rents the building. They rent from us.

Q Are you familiar with Bally Distributing Corporation?

A Reno?

Q I believe it is a Nevada operation.

A Vaguely.

Q Do they operate games?

A I don't know.

Q Then you wouldn't know if they operate video games or not.

A I wouldn't know.

Q Are you familiar with Bally Continental, Ltd of Antwerp?

A Yes.

Q Does Bally ship games to Bally Continental, of Antwerp?

A They are our distributor.

Q And are they a distributor for U. S. made products?

A Yes.

Q Do you know whether any Midway products are shipped to Bally Continental Ltd. of Antwerp?

A I saw one on the floor of their showroom. Whatever they ship beyond that, I don't know.

Q Their showroom in Antwerp?

A In Antwerp.

Q Do you know where that one that you saw was made?

A I presume it was made in Chicago.

Q Was it a Winner? Did it bear the trademark Winner?

A It was a two-player.

Q Winner IV, then?

A Two-player.

Q Oh, two-player, just Winner.

A Yes.

Q When did you see that Winner on the floor in Antwerp?

A I don 1 really recall.

Q Does Bally have any other subsidiaries that operate games, other than Carousel Time, Inc. and perhaps Bally Distributing Co.?

A Well, we have a subsidiary in the Far East, but that is strictly slot machines~

Q All right, any others?

A No, not that I know of.

Q Do you know whether Bally has ever approached Magnavox in any way, either directly or indirectly with respect to obtaining a license under the games?

A Bally did not. No, Bally didn't.

Q Did someone else in the Bally organizatiori?

A No one in the Bally organization, no.

Q Or in one of Bally's subsidiaries?

A No. Rephrase that, again. Did you say directly?

Q Directly or indirectly was my question, I think.

A All right. Indirectly, yes.

Q All right. And how was that indirectly--

A Through a Mr. Roy Petherbridge.

Q When did that occur?

A I really don't remember.

Q When did you first gain knowledge of Petherbridge's approach to Magnavox?

A I cannot recollect that, either.

Q On behalf of whom was Mr. Petherbridge functioning?

A Bally.

Q Were you personally involved in that?

A I had a conversation or two with Mr. Petherbridge.

Q Were these personal meetings?

A I met him once personally.

Q In his offices?

A No.

Q At your office?

A Yes.

Q Was this before or after he had contacted.Magnavox?

A Before.

Q And was this to arrange to have Mr. Petherbridge contact Magnavox with respect to a license?

A Yes.

Q When did that ·occur with respect --

MR. WELSH: ·counsel, I think we are getting into an area that is objectionable here on the ground of privilege,as to what was the substance of the communications between

MR. ANDERSON: We haven't gotten to that yet, and even when we do it sounds like this was a business function of Mr. Petherbridge rather than a legal one, but why don't we wait until you have a problem before we get excited.

MR. WELSH: I am saying we are getting very close here.

MR. HERBERT: It doesn't seem to have much to do with either the jurisdiction or venue question either.

MR. ANDERSON: It is a very complicated interrelationship, I think.

MR. WELSH: I might say that I understood that these depositions were to be limited to the subjects that were set forth in the notice. I think you have gone beyond that. Where you are in areas that you might subsequently have been entitled to enter into. I haven't objected particularly. We did stipulate to having these depositions less than 30 days after the complaint was served, and I think it was on that basis that we felt that they were going to be limited to the subjects that are set forth in the notices. As I say, to the extent that you are in areas where you would have been entitled later to examine, I am not objecting to the questions. I did want to make this point on the record.

MR. ANDERSON: Well, we don't want to abuse this particular deposition in any way, but I think we have already refreshed the witness's recollecti6n on one occasion with respect to events, and I think there is perhaps a direct relationship between this

event and the contacts with Mr. Bushnell and Atari, and I don't know, I am exploring it. That is why I wanted to know I don't even remember now. the last question we were on. There was an outstanding question, I think, at the moment.

(The question was read.)

By Mr. Anderson:

Q When did that occur with respect to the meeting that you had with Mr. Bushnell around the MOA in the fall of 1972? Was that before or after?

A I don't recall.

Q Did Mr. Petherbridge report back to you the results of his contact with Magnavox, directly or indirectly?

A Ultimately well, I got a copy of a letter from Magnavox to Mr. Petherbridge.

Q Was that accompanied by a cover letter from Mr. Petherbridge?

A No.

Q Did you receive any other communication from Mr. Petherbridge with regard to the contact with Magnavox?

A No.

Q Did you have any other discussions with Mr.Petherbridge following the contact with Magnavox?

A The only thing I got was a call in which he said that --

MR. WELSH: You don't have to tell what he said. This is a matter of privileged communication between you and Mr. Petherbridge, your attorney.


MR. ANDERSON: Well, as I said, Mr. Welsh, I seriously question whether Mr. Petherbridge was functioning, in a legal capacity. It sounds to me like he was functioning in a business capacity·

MR. WELSH: I will say that he was functioning in a legal capacity, as attorney for Bally.

By Mr. Anderson:

Q Mr. Britz, has Bally used Mr. Petherbridge for other legal services, other than this contact with Magnavox?

A I don't really know whether we used him in any other instances or not.

Q How did Mr. Petherbridge and you happen to contact?

A Through a recommendation.

Q And who recommended him?

A I believe it was one of the fellows from Midway.

Q Who, do you recall?

A I don't know whether it was Mr. Ross or Mr. Wolverton.

Q I think you indicated that you asked Mr. Petherbridge to contact Magnavox about a license, is that correct?

A That is right.

Q Did you ask Mr. Petherbridge to perform any other services for you other than the contact with Magnavox about a license?

A The Magnavox was the only one as far as Bally was concerned.

Q Did you ask Mr. Petherbridge for any opinion with respect to the validity or infringement of the Magnavox patents?

A No, I didn't take it up with him. Our Mr. Lally did.

Q Was that written or oral?

A Oral.

MR. ANDERSON: . I don't really see how that could possibly be privileged, Mr. Welsh.

MU. WELSH: I am going to take that position.

MR. ANDERSON: I understand, and I am taking a position, too. I would like to have produced all communications between Mr. Petherbridge and Bally or Midway with respect to the contact of Magnavox with respect to obtaining a license.

MR. WELSH: You had better make that a formal request.

MR. ANDERSON: All right, in due course we will.

Q Did you or any one at Bally or Midway report the results of the contact of Mr. Petherbridge to anyone else including Atari?

A I don't recall.

Q Did you personally ever report the Petherbridge activities to anyone?

A Just Mr. Lally.

Q Anyone else?

A Not that I recall.

Q I Did Atari ever contact you with respect to the Magnavox patent?

A No.

Q Did you ever have any discussion with Atari or anyone associated with Atari about the Magnavox patents?

A I don't recall.

Q At any time up to the present time?

A I don't recall.

Q Do you believe that you may have had contacts with anyone associated with Atari with regard to the Magnavox patents that you don't now have specific recollection of?

A Someone could have. It could have been our chief engineer, I don't know.

Q Am I correct that Empire Distributing is a wholly-owned subsidiary of Bally?

A Right.

Q And Midway is a wholly-owned subsidiary of Bally?

A Right.

Q And Carousel Time, Inc. is a wholly-owned subsidiary of Bally?

A Right.

Q And Bally Distributing Company is a wholly owned subsidiary of Bally?

A Bally Distributing in Reno?

Q Yes.

A No, it is not.

Q Does Bally have any ownership of Bally Distributing Corporation?

A No.

Q Is Bally Distributing Corporation a completely separate and independent entity?

A Yes.

Q Is it publicly held?

A No.

Q Do you know who the principal stockholders


A Mr. Si Redd.

Q Si Reddick?

A Redd, R-e-d-d. And Mr. O'Donnell.

Q Is Mr. Redd associated with Bally Manufacturing Corporation?

A He is a distributor.

Q Is he a distributor in another capacity other than_Bally Distributing Corporation?

A Not that I know of.

Q Has Bally at any time provided a patent indemnity of any kind to anyone with respect to video games?

A Not to my knowledge~

Q Has Bally ever requested a patent indemnity

from anyone with respect to video games?

A Not to my knowledge.

Q Does Bally have any agreements with Midway regarding video games?

A Not to my knowledge.

Q Has Bally or Midway, to the best of your knowledge, ever exported video games to Ireland?

A Bally did not. Midway, I wouldn't know.

MR. ANDERSON: We will take a short break.

(A short recess was taken.)

MR. ANDERSON: Let's go back on the record.

Q Mr. Britz, when did you become aware of the Sanders' patents?

A I don't even know what you are talking about.

Q - Are you familiar with the patents that are involved in the litigation in which you are testifying?

A No, I am not.

Q Did you know that this is a patent suit?

A Yes.

Q And did you know that it involved patents that Magnavox is asserting against Baliy among others?

A I assumed that.

Q And do you know what patents they are?

A No, I do not.

Q When did you first become aware that Magnavox had patent rights that might bear upon your video games?

A Well, for one thing, when I saw this request for a deposition and I heard previous to that – I heard that Magnavox was about to sue, that is all I know.

Q Well, at the time that you had Mr. Petherbridge contac.t Magnavox, you were already

aware of certain patent rights that Magnavox was asserting?

A I didn't know the extent.

Q How did you become aware of it?

A Aware of what?

Q How did you become aware that there were such rights or alleged rights?

A Because of Odyssey.

Q All right. What about Odyssey made you aware that there were patent rights?

A We weren't aware.

Q Why did you have Mr. Petherbridge contact Magnavox?

A Well, first of all to see if there was any sort of a patent~ and to see if we could be licensed.

Q At the time that you had Mr. Petherbridge contact Magnavox~ is it your testimony that you, and to the best of your knowledge Bally, had no knowledge that there were any patents that were involved?

A We weren't sure there were.

Q What information did you have at that time regarding the patents on video games?

A None. We had Mr. Petherbridge look into it.

Q Did you have Mr. Petherbridge make some sort of a search to determine what patents existed?

A I imagine he made a search.

Q Well, do you know?

A I am not sure.

Q Did you ask him to make a search?

A Mr. Lally did.

Q Prior to that time, did you or anyone at Bally to the best of your knowledge have any knowledge that Magnavox had asserted or alleged patent rights on video games?

A Say it over again, please?

MR. ANDERSON: Read the question.

(The question was read.)

THE WITNESS: I was not aware of it.

By Mr. Anderson:

Q I may have inquired in this area before, but I just don't recall. You said you believed you got Mr. Petherbridge's name from someone at Midway?

A Right.

Q Did you personally then initiate the contact with Mr. Petherbridge?

A I don't recall whether it was myself or Mr. Lally.

Q But it was one of the two of you?

A Right.

Q And at that time the purpose, as I understand it, was to have Mr. Petherbridge contact

Magnavox about possible licensing?

A True.

Q At that·-tim,e that you first instructed Mr. Petherbridge, what knowledge did you have or Bally have of Magnavox's patent position on video games?

A None.

Q You were aware that Magnavox had then· marketed the Odyssey game, is that correct?

A I had read about it.

Q And it was solely reading about Magnavox's. Odyssey game that prompted you to contact Magnavox about a patent license?

A True.

Q. Am I to understand that there was no other stimulation, other than reading about Odyssey, that prompted your contact --

A The similarity in reading about it in, I think it was, Time Magazine.

Q Is the Time Magazine article the source of your knowledge about Odyssey?

A True, right.

Q Any other source as of that time?

Q Are you aware that Bally at one point advised Magnavox that Atari was going to take care of any licensing problems with respect to video games?

A No, I am not.

Q Do you know whether that was Bally's position at any time?

A No.

Q Do you know of any facts which would have formed a basis for Bally stating to Magnavox that Atari was going to take care of any licensing problems on video games?

MR. WELSH: What is the question?

(The question was read.)

MR. WELSH: I don't think we have established that Bally stated that to Magnavox.

MR. ANDERSON: No, I am asking if he knows of any basis on which they might have said that

MR. WELSH: Isn't that involving conjecture? Why should he testify with respect to something that has not been established that it occurred? Bally never manufactured any of these things.

By Mr. Anderson:

Q De you know whether Mr. Tomlinson at any time advised Magnavox that Atari was going to take care of any licensing problems on video games?

A I do not.

Q Mr. Tomlinson is an employee of Bally?

A Right.

Q And Mr. Tomlinson, when functioning in his role as attorney, would be speaking for Bally, is that correct?

A True.

Q Do you know of any discussions that ever occurred between anyone related to Atari and anyone related to Midway or Bally with regard to Atari's assumption of responsibility for licensing problems on video games?

A No, I don't.

Q Do you know of any relationship between Bally or any Bally subsidiary and Atari or any Atari subsidiary other than the ones you have already testified about?

A No, I don't.

Q Is there any ownership, partial or otherwise, of any Bally subsidiary by anyone related

to Atari?

A Not that I know of.

Q Or vice versa?

A Not that I know of.

Q Have you ever heard of a company calledKee Games?

A No, I have not.

Q Have you ever had any contact with anyone associated with Allied Leisure Company?

A No.

Q Do you know what Allied Leisure is?

A I have heard of them.

Q And from your knowledge, what is Allied Leisure?

A A manufacturer of video games.

Q Do you know where they are located?

A I believe they are down in Florida.

Q Do you know any individual involved in that company?

A No, I don't.

Q Do you know of any contact that anyone associated with Bally has had with anyone associated with Allied Leisure?

A No, I don't.

Q In the course of reporting to Bally, does Midway provide information with respect to their product line and production?

A We know what they are producing currently. That is the extent of it.

Q And does Midway advise Bally of the types of games that they are making?

A Yes.

Q And does Midway advise Bally of the approximate number of games that they manufacture?

A Yes.

Q Approximately how many video games has Midway manufactured and sold?

MR. WELSH: I will object to that question on the ground that it can only be relevant as to damages in the event that liability is established and I believe this is confidential information of Midway that they would not like to be known publicly.

MR. ANDERSON: Well, it is not confidential. It has been disclosed to Bally.

MR. WELSH: I will object on the other grounds.

MR. ANDERSON: Well, for the moment I won't press the issue. I don’t accept the ground of your objection but we can take that up at a later date,

I think. We will leave that as an unresolved question. No further questions.

MR. WELSH: Same stipulation on signature?

MR. ANDERSON: Yes, we will let Mr. Britz sign before any notary public.

On this confidential portion, if any, I think you should delineate very· specifically and keep it down to a minimum, obviously, because it is messy to have anything under a confidential relationship. I seriously question whether any of it should

ultimately or properly be considered confidential, but I recognize your right under our stipulation to designate it.

MR. HERBERT: I so far don't recall that anything set forth was confidential with respect to Atari. I don't know of any testimony that should not be discussed with my client Atari.

MR. ANDERSON: I object to that. If it can be discussed with his client --

MR. HERBERT: The confidential nature of the agreements are agreements -- one of them is between Atari, I believe. Another one is between the president

of Atari, and Bally, and just because it is confidential does not mean that it has to be attorney-client confidential. It can be business confidential, and the fact that there are two companies involved does not, mean that Magnavox can be privileged to


MR. ANDERSON: Again, I disagree pretty generally that there is anything confidential involved here, but to the extent that there might be, there is testimony about the internal operations of Bally and Midway which I would think Atari is not necessarily privy to with respect to the Atari - Bally -·Midway operations, and therefore I would question whether anything that is freely disclosed to Atari should not be freely available to Magnavox.

MR. HERBERT: I don't believe any of that particular: information was called confidential in the first instance. The only thing called confidential was that

having to do with the Ross Deposition Exhibit 3, to which Nolan Bushnell is a party .

MR. ANDERSON: But Atari did not even exist then, and therefore I just don't see how Atari can claim a right to the information or a confidential relationship to something between Nolan Bushnell and Bally.

MR. HERBERT: Nolan Bushnell is Atari's president

MR. ANDERSON: Well, I don't see that that has much bearing on the relationship between those entities·. Mr. Britz is an executive VP of Bally, but that does not presume that everything he does is confidential to Bally or vice versa.

MR. HERBERT: You are taking a position that any time two companies such as Bally and Atari or Midway and Atari have something which they are willing to · ·

concede among themselves as confidential that we cannot talk about it among ourselves any longer as long as we talk about it with Magnavox and I don't see that as even rational.

MR. ANDERSON: I think you are wrong in your position there, but that doesn't apply here. This was an agreement between Mr. Bushnell as an individual and Bally, to which neither Midway nor Atari were privy, and still it has been disclosed to both Midway

and Atari and I think therefore we are entitled to it just as much as Midway or Atari, and I don't think there is anything·confident1al.

MR. HERBERT: Then you can talk to Mr. Bushnell about it.

MR. ANDERSON: We will be in a position to fight that out one way or another along the road, but I certainly want our position clear, and I respect your right to make your position clear.

THE WITNESS: Is that .it?


MR. WELSH: I don't have any cross examination • •

Thursday, October 22, 2015

Preliminary Report - Was The Devil's Dungeon the First Commercial CPRG and What Was the First Commercial Microcomputer Game?

While arcade games are the focus of my research, I occasionally delve into computer game history. While I certainly played my share of arcade games and spent a good deal of time with my Atari 2600 (though my first console was an Atari/Sears Super Pong IV), my favorite gaming platform by far was my Apple II and probably my favorite genre of games was the role playing game. I have also always had an intense interest in the origin of things (my favorite comic book issues, for instance, were inevitably those with origin stories). Unsurprisingly, then, one topic in which I am keenly interested in is that of the first commercial microcomputer/personal computer role playing game as well as the first commercial microcomputer game in general.

The "commercial" qualifier is a necessity since the finding the first microcomputer game period is probably a fool's errand. With computer games users could program their own games and many of them did. In the early years of personal computing, in fact, this may have been the only way to obtain software since there was as of yet no real commercial microcomputer software industry - at least not for games. But more on that later. Developing arcade and console games generally required expensive hardware and development systems that only a tiny, tiny handful of consumers were likely to have. Microcomputers were different. Almost all of them eventually had at least a BASIC compiler available and many of them shipped with one out of the box. In addition, there were numerous books and magazines offering "type-in" games in BASIC so even users completely lacking in programming skills could have a go at it. Since such games could be created by anyone and everyone who owned a computer, trying to document the first such game would probably be an exercise in futility.

Trying to find the first commercially sold personal computer game is a bit more manageable. But it still offers its own set of challenges. One is defining what counts as a personal computer. Contrary to what some thing, personal computers did not start with the Apple II, Commodore PET, and TRS-80 in 1977. There were at least two dozen personal computers, and possibly many more, produced in 1975, 1976, and the first half of 1977 (i.e. before the West Coast Computer Faire in June when the members of the "trinity" were either announced or introduced). And they didn't start with the Altair 8800 either. A handful of models appeared in the years before the Altair was introduced in the famous January 1975 Popular Electronics cover story, including the Kenbak-1, the Datapoint 2200, the National Radio Institute 832, a kit computer that could be built from 52 integrated circuits, the French MICRAL-N (1973, considered the first microprocessor-based nonkit microcomputer to be sold commercially), and the Scelbi 8H (1974, the first US microcomputer with a microprocessor). In the 1960s there were machines that some consider to be personal computers, MIT/DEC's LINC (1962), and Olivetti's Programma 101, introduced at the 1964 New York World's Fair. Some trace the beginnings of personal computing to 1966 when Stephen Gray formed the Amateur Computer Society as a way for hobbyists building their own computers to share information. Of course, in order for a society to be formed, there had to be an existing personal computer movement. Nonetheless, it was in the mid-1970s that the personal computer industry really began to take off. At the time, these machines were generally called "microcomputers" rather than "personal computers," which might be a better term to use.

All of that is a long way of saying that even the question of the first commercial microcomputer game is not an easy one to answer. This is especially true given how poorly this era is documented and how little attention it has been given by computer game historians. One thing I have discovered in researching early arcade games is that sources like Wikipedia and MobyGames are, more often than not, worthless. They are somewhat useful for finding information on arcade games published from the late '70s on but for earlier games, if you want to find reliable information, you have to dig it up yourself. The situation for early computer games is even worse. In my opinion, no one has really researched the pre-1978, or even the pre-1980 era in sufficient detail.

I would love to tell you that I am going to be the person who does but that is not the case. At one point, I was planning to write separate books covering the history of arcade, computer, and console games but just covering arcade games, and even then just up to 1985, and even covering primarily games made in America has taken up far too much of my time. On occasion, however, I do tackle more bite-sized questions about computer games.

Two that I hope to address one day are: 1) what was the first commercial CPRG (computer role-playing game), and 2) what was the first commercial microcomputer game. I will not be attempting to answer either of those questions here, since I haven't really researched them. I have, however, uncovered a few interesting items in my preliminary research and thought I'd share them.

The first question is the easier of the two because we are dealing with some constraints. The first edition of Dungeons and Dragons came out in 1974 making it very unlikely that there was a computer RPG before then. Perhaps the first computer RPGs of any kind were those created for the PLATO system. PLATO (Programmed Logic for Automated Teaching Operations) was a CAI (Computer Assisted Instruction) system created in 1960 at the University of Illinois, originally on the ILIAC I computer. Initially a single-user system, it soon evolved into a timeshare system that allowed multiple users to connect to a single mainframe. By the late 1970s the system included several thousand terminals around the world connected to almost a dozen mainframes. PLATO was a fascinating system which merits far more attention than it has been given so far and far more than I am going to give it here.

An entire blog could be dedicated just to PLATO (a book is forthcoming that looks very promising). It was among the first systems to offer such features as e-mail, chat rooms, and instant messaging. It was also home to a number of games, including some of the first CRPGs. The first may have been m199H, which was allegedly written in 1974. Unfortunately, nothing is known of the game save its name. A number of other RPGs appeared on the system in 1975, including dnd/The Game of Dungeons (which may have been started in 1974), pedit5/The Dungeon, and Moria. From the screenshots and videos, I've seen, these games appear to be more sophisticated than the microcomputer games we will discuss shortly. They arguably included features such as high score boards and bosses (one developer claims that one of these games included the first boss, but I find that claim questionable). I do not have time to go into these games here, but you can check out Charles Bolingbroke's (a pseudonym) excellent CPRG Addict blog for more info.

What about the first commercial microcomputer RPG? Here, three excellent sources come to mind: the CPRG Addict blog, the Museum of Computer Adventure Game History (, and Matt Barton's book Dungeons and Desktops. The leading contenders are Beneath Apple Manor (Don Worth, The Software Factory/Quality Software), Space (Steven Pederson and Sherwin Steffen, Edu-Ware), Dungeon Campaign (Robert Clardy, Synergistic), Dunjonquest: Temple of Apshai (Automated Simulations), Telengard (Avalon Hill), Wizard's Castle (Joseph R. Power), Eamon (Donald Brown), and Akalabeth (Richard Garriott).

Of these, Beneath Apple Manor, released in 1978, is the consensus pick for first CPRG. Wikipedia and CPRG Addict both list it as such, as does David Craddock's book Dungeon Hacks (a history of Roguelike RPGs) Craddock, however, takes the claim from CPRG Addict. Seeking "definitive proof" of the claim, Craddock contacted Chester Bolingbroke, who replied:

"In all my investigations, I've been unable to track down a commercial RPG released earlier than 1978. MobyGames, one of the most comprehensive sources on the Internet, gives 1978 as the first year of any commercial RPG, as does Wikipedia. In almost five years of blogging, no one has come forward with an earlier title."

That certainly doesn't sound like definitive proof to me and , as we will discuss, I am a bit skeptical of the claim.

Let's quickly review the major candidates.

* Akalabeth and Temple of Apshai were not published until 1979 (for a discussion of Akalabeth's chronology, see (

* Eamon was a text adventure system with some rudimentary role playing elements thrown in. The system eventually included over 200 games. While one person claims to have played it in 1978, a 1979 or 1980 initial release date seems more likely. Once again, Jimmy Maher has done some excellent legwork on this one (

* Telengard's release date is usually listed as 1982, but its history goes back much farther. The author, Daniel Lawrence, had written a BASIC game called DND (a different game than the PLATO dnd) in 1976 or 1977 and ported it to a Commodore PET in 1978. As Lawrence explained in an interview for the Armchair Arcade website (
"DND was written in 1976. Telengard was written and played locally by myself and the local crowd in 1978 when the first Commodore PETs came out. I had ported it to the Atari 800, the Apple ][+ and the TRS-80 before it was noticed by Avalon Hill and licensed for marketing."
This seems to indicate that the game was merely played by Lawrence and his friends in 1978, not commercially released.

* In a comment on CPRG Addict Robert Clardy claimed that Dungeon Campaign was published in December 1978. However, the copyright record lists a date of creation of 1979 and a copyright date of March 20, 1979.

* Space was a text-based sci-fi game based on the Traveler tabletop rpg. While some list it as a 1978 game, Barton claims it was likely released in 1979.

* Wizard's Castle was another game mentioned by Barton. It was a BASIC game published in a
magazine for the Exidy Sorcerer. Barton does not say which magazine, but I suspect it was the Sorcerer fanzine whose name escapes me. Baron also fails to mention when the game was published. The Sorcerer debuted in April 1978 and I find it unlikely that the game was published prior to 1979 but need to do more digging.

Finally, there seems to be little question that Beneath Apple Manor was published in 1978, but when? Worth claims that he showed the game off in computer stores in the fall of 1978, but this is a bit problematic. Even if his memory is accurate, it is unclear if he sold the game in the fall, or just demonstrated it in computer stores.

As I said, I have not really investigated this issue myself so Beneath Apple Manor may well be the first CPRG. As I also said, however, I'm a bit skeptical. First off, I don't set much store by what MobyGames or Wikipedia has to say on the issue since pre-1978 microcomputer games are extraordinarily poorly documented (the ones in 1978 and 1979 are better but not much).
However, in the little research I have done, I've turned up one intriguing possibility. Back in the day, I had a collection of probably 1,500-2,000 Apple II games as well as a handful of magazines and catalogs listing games I didn't have, all of which I entered into an Excel spreadsheet several years back. Looking back over my spreadsheet, I found a handful of RPGs that may have been released in 1979 or sooner. One of them was a BASIC game called The Devil's Dungeon written by Dr. Charles William Engel.

A quick web search turned up this article: which gives a bit more info on the game. The copyright office lists a copyright date of January 10, 1978 and, intriguingly, a date of creation of 1977.

An ad for the game (from Engel's Tampa, Florida company, Engel Enterprises) appeared in the February 1978 issue of Byte and it was reviewed in the March 1978 issue of Interface Age, the April 1978 issue of Byte, and a 1978 issue of Personal Computing.

However, it appears that at this point it was only sold as a 15-page book containing a program listing in BASIC.  As the ad above indicates, Engel also published a book called Stimulating Simulations (copyright 1977), which was later republished in various editions for most of the early microcomputers. PDFs of both the original 1977 edition and the 1979 Atari edition are available on-line. The former does not include The Devil's Dungeon (which was being sold separately) but the latter does, along with a listing for the game and some sample runs.

Unfortunately, it gives little other info on the game's history. As for Engel, he was a professor of mathematics education at the University of South Florida with a B.S., M.S., and Ph.D. from Wayne State University. Around 1981, he helped establish the Florida Instruction Computing Resource Center, an organization dedicated to promoting the use of computers in education.

So could The Devil's Dungeon have been the first commercial CPRG? To answer that question, we must first decide if it was an RPG at all. The game was very, very simple (and that's putting it mildly), especially compared with games like Beneath Apple Manor. It was all text with no graphics of any kind. From this description, it may seem little different than games like Hunt the Wumpus and Colossal Cave, but unlike those games, it did include several role-playing-game elements, such as experience points, attributes (speed and strength), monsters, and treasure. (other features included poison gas and tremors). On the other hand, it seems to lack character development completely, which would disqualify it in some people's eyes. Personally, I lean toward saying that it qualifies as an RPG, but just barely though I may change my mind. Others, however, will likely disagree, especially given the lack of character development.

Even if it was an RPG, however, does a game that was only published in book form count as commercial? If so, what about all the other BASIC games that were published prior to 1978 in books like David Ahl's BASIC Computer Games the People's Computer Company's What to do After You Hit Return or in magazines like Byte and Creative Computing? I suppose it's a matter of opinion whether it counts as a commercial computer game, but in any event, it does seem to have been published prior to Beneath Apple Manor. As for other BASIC games, I am unaware of any previously published games that could be considered RPGs, but I need to review my library. Another question is whether or not it should be considered a personal computer/microcomputer game, since many of the BASIC games books were written before microcomputers appeared on the scene. My initial thought is that it should be. Yes, it was just one of many BASIC games and could have been implemented on a number of systems, but Engel appears to have aimed his book at microcomputer rather than mainframe users.

Also, it does appear that the game was later published on computer media of some sort. For instance, it was listed in Skarbek's Software Directory - a catalog of Apple software published in 1980 - as being sold by Rainbow Computing (a computer retailer in Northridge, CA that also published software). It was also included in A.P.P.L.E.'s Nightmare Game Pak, a collection of BASIC games for the Apple II. A.P.P.L.E. was the Apple Puget Sound Program Library Exchange, an early Apple user's group established in February 1978 that sold collections of games on tape and disk (in addition to other activities). I am not sure when Nightmare Game Pak was published, but this version is available as a disk image if you want to give The Devil's Dungeon a go on an emulator. Here are some screenshots from AppleWin:

As to when the game was published in book form, it appears to have been available by at least February 1978, and possibly (given the copyright information) in 1977. I was unable to find contact info for Charles Engel and am not sure he's still alive. He was born in 1935, so he would be 79 or 80 today. In any event, I think that at the least the game merits more research. And there's always the very real (in my mind) possibility that someone offered a CPRG for sale prior to 1978.

How about the second question: what was the first commercial microcomputer game? Here, information is much harder to come by and there does not really seem to be a consensus favorite. I've done even less research on this one than I have on the first, but once gain, I've unearthed some interesting candiates in the little resarch I have done.

On his personal website (, Peter Jennings (co-founder of Personal Software) claims that his program MicroChess was "the first game program sold for personal computers." Jennings originally wrote the game for the MOS Technology KIM-1 computer. It was first advertised in the November 1976 issue of KIM-1 User Notes and the first copy shipped on December 18.

Not to take anything away from Jennings and his achievement, but I am skeptical of his claim. A quick search turned up two earlier examples of computer games that were offered for sale.
In April 1976, and possibly earlier, Cromemco began running ads for its TV Dazzler, a color graphics card for the Altair 8800 and other s-100 bus microcomputers. The ad also offered three programs for the Dazzler for $15 each. One of them was John Conway's Game of Life.

Any guesses as to what format the games were sold on? If you guessed cassette tape, you are ------ wrong! Nope, these were sold on paper tape. Yes, despite what you may have heard, cassette tapes were not the first medium on which microcomputer games were sold.
OK, now some of you may question whether Life actually counts as a game. Personally, I am skeptical that it does. Stan Veit reports that Steve Wozniak also created a version of Life for the Apple I (that's I not II), though I don't know if it was offered for sale. In any event, by October 1976 (again, possibly earlier) Cromemco was selling Spacewar on paper tape for $15 for machines based on the 8080 microprocessor and that definitely counts as a game and was sold before MicroChess. Here is a the cover and first page of the game manual:

And here's the table of contents for TV Dazzler Games, a collection of games for the TV Dazzler published in 1977 on diskette. for $95.

So were these the first microcomputer games offered for sale? I seriously doubt it. I imagine there were a number of games available for personal computers prior to 1977 and surely a few of them must have been offered for sale (yes, I know that most software was swapped at users groups or typed in from magazines etc. but I can't believe no one was selling software). A few years back when the demoed an Apple I, they ran a Star Trek game on it and someone might well have made one for sale.

Another early game was Steve Dompier's Target. Most sources claim that Dompier created in 1977 for the Processor Techology Sol-20 (watch the video here: but Stan Veit claims that Dompier originally wrote it for Processor Tech's VDM-1, which was advertised in the first issue of Byte in September 1975. The ad, however, does not mention Target and Veit claims that the VDM-1 wasn't available until fall 1976 (despite the ad's claim that it would be available in three weeks, which only illustrates one of the pitfalls of relying on ads for game release dates).  There was also the Altair 8800 game "Kill the Bit" but I don't know if it was offered for sale (and it didn't use a monitor).

So what was the first commercial microcomputer game? Beats me. To answer that question would require, at a minimum, scouring all the back issues of computer magazines published prior to 1977 as well as ads in various users group magazines, fanzines etc.  So far, I don't know of anyone that had done that - and if they did, it still wouldn't give a definitive answer. One of these days, I may do it myself, but who knows when and if I'll have the time.

Finally, since I mentioned the TV Dazzler and Stan Veit, I thought I'd leave you with this story from his book Stan Veit's History of the Personal Computer - perhaps my all-time favorite book on personal computer history. Stan ran the Computer Mart in New York City, one of the very first computer retailers. One night he installed a TV Dazzler card, connected it to a color TV set, and ran the Kaleidoscope program that was sold for it (the program just displayed kaleidoscope patterns on the screen. At the time, the store was located inside another store called Polk's). I'll let Stan pick it up from there:

"One evening we put the TV set in the window. It was connected by a long piece of coaxial cable to the IMSAI computer in the back of the store, which had Kaleidoscope loaded into the TV Dazzler. We left the computer running when the store closed, and went home. Imagine that you are a motorist driving down 5th Avenue in New York City at night. All of the stores are closed. It's pitch black, except for the street lamps. As you approach 32nd St., you see dazzling kaleidoscope patterns in bright colors, playing across the face of a TV tube in a store window. Even a jaded New Yorker was sure to stop and see what was making this display. Naturally, when you stopped to see what was going on here, so did everyone else. It did not take long to attract a large crowd of rubberneckers, and this stopped traffic completely, creating a big traffic jam on one of New York's busiest avenues. Soon, the police came to unscramble the traffic jam and they quickly saw what was causing the  problem. Thinking that the pictures had to be coming from a TV broadcast (there were no VCR's in those days,) they called up all the local TV stations to find out who was broadcasting the images. The TV stations knew nothing about it. The police soon realized that the display had to be generated by something inside the store. First they called the owner, and then the manager, of the store. The manager had to come downtown all the way from the Bronx. We had to open the store, turn off the alarm, and then he disconnected the computer by pulling the power cord out of the wall. The next morning, when I came to work, he had a few choice words to say to me about the window display. If I ever pulled anything like that again, I was finished with Polk's store!"

What I love about that story is what it reveals about the early days of computers. It seems incredible now that a simple kaleidoscope program could stop traffic in one of the world's largest cities, but that's how unfamiliar people were with seeming computer-generated images on a television. Most people had never seen anything like it. That's why a game like Computer Space could leave people gaping in wonder.