Plaintiff John R. Martin's patent application describes "an electronic game device system [which] is switchable between an amusement mode and a gaming or gambling mode." The application also included an illustration of the device (pictured left).

While Martin does not directly refer to the Nintendo DS, the device also includes an "improved method of operating a touch screen on a CRT or ICD computer screen uses finger release as input registering," which describes input functionality similar to the handheld's touch screen. Martin's patent was filed in August of 2003.

Nintendo issued a response denying the allegations, stating that it had been notified of the patents in November of 2007 and requesting that the lawsuit be dismissed with prejudice.

According to the report, the plaintiff also has a similar suit filed against Apple over the iPod's touch-sensitive scrolling wheel.