Is Mass Effect's dialogue wheel patented? What other random things are patented? And why all these patents anyway?
By Patrick Vuleta on May 29, 2014 at 5:23 pm
Last fortnight we looked at our the industry grew up during the 80s. Back then, patents were not the omnipresent force they are today, but still had their impacts. We saw how the patent for Pong led Bobby Kotick to acquire a struggling Activision.
It’s fair to say that patents have exploded since. Nowadays, just about anything in software gets patented. Have a game concept? Any game concept? Better patent before someone else does. Then, if someone makes a similar game you can sue. For this reason you’ll see patents reviled on forums every so often, but unlike software piracy, patents don’t often take centre stage.
But make no mistake, patents are a big deal—they affect gaming far more than piracy. Every gamer should have some understanding of the issue, lest we suddenly wake up and find EA has gone all Monsanto on us. Here you’ll find the latest on the patents issue.
You can patent just about anything
To understand why patents are so controversial, the key idea to grasp is that a patent goes beyond copyright in that it protects the function of the invention, not just the expression. So, while you won’t infringe on copyright if you create a game that plays like Mass Effect but with different words (let’s call it Invasion of the Beepers), you may still end up infringing on a patent, since you’re copying the function.
This is best framed with an example. Compare these two images:
Squint a little and you might see the resemblance. The first image is taken from a patent owned by Square Enix for their game Final Fantasy X. The second is the skill system from Path of Exile. The patent is nothing more than a function of assigning skill points along a horizontal branching tree, which Path of Exile substantially mimics.
So we can see how simply patenting a software function can open up developers to lawsuits, even across genres. My guess is that Path of Exile’s developers aren’t paying Square Enix licensing fees, so on a cursory glance, may be at risk of a lawsuit.
I doubt any lawsuit will arise though—there are thousands of cases like this. The largest companies own tens of thousands of patents, on every conceivable software function you can think of. Mass Effect’s dialogue wheel is patented (that’s why “I’m an asshole” always goes down the bottom), and so are the corkscrew runs in Sonic the Hedgehog (remember those?).
So many patents exist that you could name any part of your favourite game at random and somewhere out there, someone would likely have it patented. It’s pretty damn hard to design a game that isn’t going to infringe something, someone, somewhere. This can make games development, especially by smaller companies, a legally risky business. Even the current crowdsourcing trend won’t give power back to indies if the big publishers hold all the patents.
What’s happening now?
Surprisingly, despite being surrounded by a sea of patents, there have not been many major lawsuits concerning software specifically. Like nukes, people just kinda grab patents and threaten each other—most claims are settled out of court. March this year saw the first United States Supreme Court case on software patents since 1972, Alice Corp v. CLS Bank.
This case is important as it concerns just how abstract a software patent can be. The issue in dispute, (word for word) is “whether claims to computer-implemented inventions—including claims to systems and machines, processes, and items of manufacture—are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101.”
That basically means whether the Supreme Court is going to make a finding that what is seen as patentable is broad or narrow. If they find it is broad, then rather abstract software functions will continue to be patented. If they find it is narrow, then software functions may not be so easily patented and we may see games patents start to dry up. The ruling is due at the end of June, so it’s worth paying attention to the internets around then.
Are patents destined to be broad?
Another potential surprise is that the current patent quagmire is an American phenomenon. Unlike copyright, the other half of the world has much stricter patent laws. This is worth noting. When someone talks about the “patent system”, they are specifically referring to the United States.
In the EU, for example, it’s quite hard to get a software patent. That is because EU patent holders must have proven “inventiveness”, which is to say a novel way of solving a technical problem. Figuring out a new chip manufacturing process is a technical problem, but a new method of modelling jiggle physics is not. Patent litigation in the EU also comes with a higher risk of having to pay the winner’s legal costs, so it loses a bit of its value of legal extortion.
Yet the sheer size of the US market dominates, and its patent laws influence everyone who wants to sell a game in America. Hopefully, come June we may see a tightening of the US system and publishers may have to actually show inventiveness in their patent applications. Until then, the spectre of patent litigation will hang over anyone who wants to develop a game.