Patents have always had an important role in the game industry and that role is growing in importance each year. People in the industry have mixed feelings about using patents, and everyone agrees the patent system could use some structural improvement. Yet, the game industry is becoming a mature business and with that maturity comes more resources and intellectual property sophistication.

Beyond our collective reservations about the patent system and any moral notions about the “rightness” of patents, we all have to deal with the practicalities associated with the growing competitiveness of the marketplace. One of those practicalities and the main point of this article is that an introductory understanding of patent law is important for every game company.

For most small and mid-sized companies patents do not play as large a role as the other forms of intellectual property: copyright, trademark, and trade secret. However, as the importance of patents continues to grow, it becomes increasingly more important to understand what a patent is and what patents can do for your game company.

What is a patent?

In legal language, a patent is a statutory grant from the United States government that gives an inventor a limited monopoly for the subject matter of the patent. In regular language, a patent is a deal with the government where a person tells the public about an invention and in exchange for that information, the government grants protection for a limited time over that invention.

While this seems like a simple concept, when examined against the backdrop of the intense distrust of monopolies in the United States, the power and significance of the patent emerges. One may ask, if the United States distrusts monopoly power so much, why is it willing to give an inventor exclusive rights to a life saving drug or other revolutionary technology? While there are many possible answers, two come immediately to light: 1) providing the limited monopoly to an invention provides tremendous incentive for individuals and companies to develop new and useful inventions that otherwise may never have been discovered; and 2) providing the limited monopoly granted under a patent occurs after full disclosure by the applicant. This disclosure ensures that once the term of the patent has expired the invention will be put in the public domain, where it will be freely usable and accessible to everyone.

The limited monopoly of the patent is just that, limited. Contrary to what many people believe, a patent does not give a person the right to do anything. Instead a patent gives a person the right to prevent people from practicing the subject matter of the invention. This is a very important, but rarely grasped, distinction. A patent is merely a means to prevent others from practicing an invention. The following example will attempt to clarify this point.

Example A. Monopoly Power of the Patent.

Andy invents and obtains a patent on an input device for games. Andy is not guaranteed that he can raise money to manufacture his invention. The patent merely gives Andy the right to prevent others from making the controller. If Beth raises money and makes the same controller, Andy has the right to stop her. He also has the right “not” to stop her. By that, we mean that Andy has the right to license the patent to Beth so that Andy can receive a portion of the sales from the production of the controller.

As Example A illustrates, obtaining a patent will not necessarily lead to instant riches. Instead a patent must be part of an overall business plan that will capitalize on the unique monopoly granted by the patent. Some other ways of effectively exploiting a patent will be discussed later in this article.

Just as it is important to understand that a patent does not give the right to do anything, it is equally important to understand what types of inventions can get a patent. What is eligible for the limited monopoly granted by the Untied States? The United States patent law states that anyone who invents a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, is entitled to receive a patent on that invention from the United States Patent and Trademark Office (USPTO). But what does this actually mean?

The invention must be new and useful. “New” means both that it has not been invented previously and that it would not have been obvious to someone familiar with the relevant field. “Useful” means that the invention has to have some identifiable use that is beyond a merely speculative use. To understand what these terms mean we return to the previous example. In Example A, Beth had developed a new controller for the input device. In Example B, we will examine two separate controllers to determine whether they would be patentable.

Example B. New and Useful.

Beth comes with two ideas to improve Andy’s input device: 1) taking an Atari 2600 standard joystick and attaching it to the input device; and 2) developing a controller that responds to a user’s body odor.

If Beth attempts to patent the Atari 2600 joystick paired with Andy’s input device, the United States Patent and Trademark Office (USPTO) is likely to reject the invention because even though Andy’s input device did not previously use an Atari 2600 joystick, it would be obvious for an Atari 2600 joystick to be used as an input device and therefore Beth would have added nothing new to the art.

On the other hand, if Beth sought to patent the body odor activated improvement to the input device, it is likely that the USPTO would find the invention new,¹ but Beth may have difficulty convincing the USPTO of the usefulness of such a controller.

Even being new, useful, and non-obvious will not allow a person to obtain a patent if the subject matter is not within that allowed by the patent statute. The patent statute allows patents on any process, machine, manufacture or composition of matter, and any new and useful improvement thereof. For instance, algorithms or other pure mathematical or scientific concepts are not patentable. These concepts need to be put into direct tangible applications to be eligible for patent protection.