Legal Opinion: What’s wrong with patenting video games?

Mass Effect Dialogue Wheel

By 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:

square_enix_FFX_patent

Path of Exile

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.

12 comments (Leave your own)

That was an interesting read Patrick thanks.

I can see it now, it’s 2016 and we are all playing the next great shooter, mid way through the game we pick up a passcard, as we near the door it opens we are booted to desktop.

A message splashes on the screen:

Passkey doors patented by iD software, please send $20 USD in a brown paper bag to continue playing to Zenimax Superconglomocorp c/o: Mr Rich McMoneybags, 1 Easy Street, Patenttrolling Avenue, Hollywood, CA $$$$

I like the European idea of patenting – must show “inventiveness” or as the rest of the world except America knows it as – something that actually should be patented.

 

Luckily base features like branching skill trees have been infringed so many times that they don’t really have grounds for suing any more.

 

Agreed, Neko. In fact, I think we learned that from an earlier article of Patrick’s… if you don’t sue to protect your patent, you start to erode your rights over it (which was the excuse used by King Inc when they sued everyone for the use of ‘candy’ and ‘saga’).

 
Patrick Vuleta

Yes, that’s definitely true, and the FFX patent is probably expired now anyways.

I just found it a good visual example of how easy it could be to infringe a base function patent. :)

 

meji,

Way to give Zenimax ideas. lol

I’m against the whole concept of game design patents. Nearly all our game genres and designs are derivative or iterative in some way, all this would do is strangle creativity to death and make it overall much harder for up and comers to make a break in the industry.

I prefer it the way it works now. Can’t patent design, Can patent IP, this is perfectly fair. If someone copies your mechanics there’s nothing wrong with that, it just means more choice for consumers. If its not balanced and tested properly, it won’t work anyway.

 

Developers patenting designs = bad
Developers copying designs = bad

Me so confused :)

 

The patent system has been abused in the last 100 years to pre-patent “ideas” allowing people to sue others when they had no intention or ability to create the idea patented. Others have stolen ideas and patented them before the original developer could and in turn made millions off someone else’s ideas.

They are pretty easy to abuse, just like copyright law is now being abused by the big business bods.

 

I always learn something from Patrick’s articles.

 

Nice article. I’d just like to add that this problem extends beyond video games. Software patents in general are not great for innovation. While there is limited legal action in video games (so far), there is far more in software in general.

Yes, I’m involved in open source software and it is a big issue in those circles.

Some light reading: https://www.eff.org/patent

 

If i developed a game that involved a complex social choice system based on a dialogue wheel that looked nothing like ones found in other games, i would like to see someone claim copyright on it.

You cant seriously believe people can patent a game design, only the franchise.

 

Ctrl+F “Leliana”

No matches

Ctrl+F “Kelly”

No matches

Patrick, I am disappoint.

 

PalZer0:
Ctrl+F “Leliana”

No matches

Ctrl+F “Kelly”

No matches

Patrick, I am disappoint.

He couldn’t bring himself to bring such fine people (except Kelly) into proximity to an article on the dark art of design patents. It may have upset Leliana no end. I know it upsets me. :(

 
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