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| 06.08.2005A Response From The Authors Of 'Top Mythconceptions on Patent Protection of Video Games'
From the overwhelming feedback we have seen and received in response to our article, "It's Just a Game, Right? Top Mythconceptions on Patent Protection of Video Games," it is clear that this is an important issue that many in the industry feel very strongly about. We wanted to take this opportunity to address some of the recurring themes presented in the feedback.
For starters, for those who have negative reactions to patenting video games, please don't blame the messengers. Both Ross and I are proud to be intellectual property attorneys, and it's our job to help our clients (everyone from individual inventors to major companies) deal with intellectual property issues in today's business world.
Much of the negative feedback we've received seems to stem from a concern that extensive patent protection in the gaming industry will mean fewer competitors, as smaller game companies will be unable to fight patent lawsuits against larger gaming companies. That concern is not unique to the video game industry. The Big Guy/Little Guy struggle exists in every business out there - that's just a reality of today's business world, as is the patent system. Regardless of whether we talk about it, sooner or later more and more game companies will start to use the patent system, and will build up their patent portfolios. As we mentioned above, we are the messengers, encouraging developers who come up with legitimate video game inventions to protect, or at least give some thought to protecting, those inventions because that's their legal right. It's best not to be taken by surprise if a competitor suddenly brings up the topic of patents.
Some folks feel that computer software should be treated differently from other areas of technology, and that patents should not extend to software. That's an interesting philosophical debate, to which we ask: 1) is there any such thing as a novel and innovative software algorithm; 2) why shouldn't the person who came up with a novel and innovative software algorithm be entitled to the same level of protection as, say, the person who comes up with a novel and innovative mouse trap; and 3) What if the algorithm is implemented as a mechanical device, and not implemented in software? Would you grant protection for that mechanical device versus the implementation in software? (see October, 1989, issue of Scientific American for a Tinker Toy(r) computer that plays Tic-Tac-Toe.) Do we all somehow have a "right" to copy computer programs? Have you ever gotten upset at someone copying your work?
Some folks have a more general philosophical disagreement with patents as a concept. As we note in our article, that's a good academic debate, but the reality is if you're going to succeed in today's business world, you must deal with the hand you're dealt. That means using all tools at your disposal, including patents. Besides, the patent system is here to stay. Every industrialized nation in the world has a patent system, and the U.S. has signed international treaties regarding patent rights. While there have been various proposals for some new form of protection for computer software, those are not yet reality, so for the time being we have to use what we have.
Some feel that patents will actually stifle innovation, while others note that patents actually prevent others from copying previous ideas, thereby forcing them to innovate and come up with a new solution or technique. The video game industry will continue to grow and change, and the next generation of consoles will surely usher in a new wave of innovative game ideas and concepts that deserve to be rewarded. How much longer will those in the industry maintain the informal "cease fire" on patents that exists today?
Some final comments in response to some of the emails we have received: 1) to everyone who read the article, we hope it stimulated discussions in your respective groups and organizations, 2) to Mr. Carmack, we're big fans (both Ross and I spent many many hours playing the Doom games), and we encourage you to write your position paper to further the discussion, and 3) to those who expressed your opinions to us, we sincerely appreciate your candor and honesty (although, to answer an all-too-common allegation, neither Ross nor I have ever chased an ambulance to get patent work.)
Thanks,-
Steve Chang, Ross Dannenberg
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