Due
to the flood of responses we received, we've taken a small sample of
responses for your convenience, and have appended the rest in unedited
form. The authors of the original article have also submitted a new Letter to the Editor
to Gamasutra in response to the initial response to the article, which
included extensive coverage on technology site Slashdot and responses
on a number of weblogs and message forums.
Of
the few respondents that answered affirmatively to the concept of
patenting game software innovations or design concepts, each had one
caveat or more to their replies. This group agreed that "unique"
technical innovations should be protected, while acknowledging the
negative stigma attached to software patents due to high-profile
lawsuits. But also acknowledged was the fact that certain high-profile
titles would have never come about had the concepts of their
predecessors.
I
see no problem patenting technical innovations to the extent they are
novel and unique and advance the state of the art. Obtaining a patent
is a long, tedious, and expensive process, that it can be challenged by
the examiners and later by others in court. It exposes your idea to the
public as the applications and any supporting documents become public
documents. Others can use the concepts along with other new ideas to
create a new invention that goes significantly beyond your original
idea. You can also end up spending endless hours and expense defending
your patent once you learn of infringement. Alexander Graham Bell spent
the next ten years of his life defending his patent of the telephone.
-Ed Magnin, Magnin & Associates
The
videogame industry is growing and everyone involved has to have that
competitive edge or else risk going under. Patenting an idea is meant
to protect that competitive edge. Then again, the ideas behind games
and design are usually built up from the efforts of our predecessors
and it's this drive to refine and improve that got us where we are
today. The only time I ever hear about a patent is when company A is
suing company B over it which is probably why it's a touchy subject. I
support patents on design and technology as long as it protects the
individuals/companies involved, but when it's used to stifle creativity
and innovation then it becomes detrimental to the natural evolution of
videogames.
-Carlo Delallana, Ubisoft
Without
a question, technical innovations and specific game technologies should
be patented and protected. The gray area for me is in terms of
patenting game design concepts and gameplay dynamics. On one hand,
protecting game concepts and dynamics with patents would empower game
designers, and stop the hemorrhage of cloned games we see across all
sectors of the industry. The prevalence of these copied dynamics is
hurting our industry by stunting the growth of our audience's palette
for different types of games, and restricting the audience that we
attract to our art form. That said, all game design does not have to be
revolutionary. Some evolutionary games have defined our industry in an
extremely positive way. The games I always cite as my favorites (Halo, X-Wing, ToeJam & Earl, and Super Mario Bros.)
were all evolutions of an established genre, but they undeniably
contributed to our industry in a meaningful and beneficial way. I think
the solution is for our legal system to develop a stance on game design
and development that allows for iteration and evolution of gameplay
concepts and ideas but that protects existing gameplay mechanics from
being ripped off, retextured, and sold as new. Alas, easier said than
done.
-Coray Seifert, Large Animal Games
I
have no problem with software patents which are issued about intricate
algorithms, like RSA. What I really hate is seeing patents issued for
things which are obvious, and even more, to patent ideas which have
already been used many times before. Actually this is in contrary of
the principles of the patents system, which is here to protect
inventions which are "new, useful, and non-obvious". Seeing such things
happening, I think the patent office shows an incompetence in handling
the software industry, probably because of a lack of through knowledge
of it.
-Ondrej Spanel, Bohemia Interactive Studio
The
vast majority of the respondents to this Question Of The Week were
against the concept of software patents , and those that answered "no"
answered with a great deal more fervor then those that said "yes".
Among the reasons cited were a decided lack of expertise by the U.S.
patent office, leading to costly and cumbersome litigation, that the
very reason for the rapid growth of the games industry was due to a
general lack of patents allowing ideas to be quickly built upon and
refined, and that beyond stifling innovation, patents would be used to
crush the "little guy." Also brought up was a large disparity in how
patents are handled in the U.S. compared to Europe and Asia, where it
is often harder to enforce certain patent rights.
Patents
will only serve to ossify an already hardened market that few original
IPs can penetrate, bringing the whole industry into a quagmire as
lawyers fight out the definition of what parts of games can be
patented, and add stress to an already overloaded court system.
-Ted Brown
No, and especially not for a term of 17 years. If the term were reduced to something more reasonable (say, 3-5 years) and if
it is demonstrated that the patent office can do a far better job then
it currently does with regard to determining the novelty of software
inventions, then my feelings might change.
-Anonymous
The
idea of patenting is based on the notion that "someone other than the
patentee of a particular idea can only make use of the idea by first
copying it off of the patentee". But this notion is false. No matter
what the invention, it is always possible for another person to invent
the same thing independently. It should never happen that someone
invents something but then discovers that they are blocked from selling
it because of the Patent Office. Before awarding a patent, then, it
should be established that there is very little chance of anyone else
developing the same idea independently during the period covered by the
patent. Unfortunately, considering that "double-clicking" (6,727,830),
"drawing using XOR" (4,197,590), "run-length encoding" (4,207,599,
4,872,009), "one-click shopping" (5,960,411), "tabbed menus"
(5,546,528), "using the internet for chat" (6,449,344), "buffering
video" (5,371,551), "rotating a 3D camera" (4,734,690) and "mini-games
during loading" (5,718,632) to name a few, have all been patented, it
seems that no one at the Patent Office is even considering the
difficulty of contriving a particular invention before they stamp it
"approved" and collect their fee. What will we do when some company
decides to sue us for infringing on their "method for turning letters
from lowercase to uppercase" patent? It is said that Elisha Gray and
Alexander Graham Bell each independently developed the telephone at the
same time. But since Bell was a few hours earlier in his patent
application, he was awarded exclusive rights to market his invention.
Doesn't anyone care that Gray suffered an injustice here? The fact that
there were two people inventing the telephone simultaneously (and many
more who were less successful) should have been a clue that the
invention was just a corollary of recent and more important
developments, and that there was no justification to oppress all
inventors but one. When people are scrambling to the patent office to
try to be the first in line to file their application, as is usually
the case with software patents, it cannot be for an invention that is
worthy of a patent.
-James Martin, Lumental
Software patents slow down innovation and increase the barriers to
entry for startup developers. They are overly protective of rich
established businesses due to the cost of patent defense. Patents
reduce customer choice and bias the market in favor of the richest
corporations. Patents don't encourage invention - they stifle it.
-Martin Linklater, Curly Monsters
I
think the video game industry is seeing the effects of software patents
with the recent McKool-Smith lawsuit. While patents may have the
purpose of encouraging innovation, and may have even been effective at
doing so for physical inventions, the fact of the matter is that
current patents on software are horribly broken. The patent office
doesn't have enough expertise or manpower to seriously examine patents
on software to determine whether or not they are obvious or violate
prior art restrictions. They depend on the courts to decide, which only
works for people that can afford legal battles. Plus, the length of
patent protection was meaningful in slower times, but will a software
or gameplay invention still be relevant in twenty years? Coupled with
the incestuous cross-licensing that goes on among large software
companies, this makes for an environment that stifles innovation in
small game companies and software houses - while writing any piece of
code, no matter how novel, you will violate some existing patents. It's
inevitable. But don't go looking to see if you do - you can't fix it,
and knowing about the problem makes you liable for even more damages!
The most you can hope for as a small software writer is that you'll be
allowed to cross-license your invention, and in return for using your
ideas, the big companies won't sue you into bankruptcy. Some game ideas
should be protected - characters, innovative game hardware, and art
resources. But imagine where the industry would be today if there were
a patent on platform games, or software for positioning a camera in
first-person perspective, or the challenge of collecting items for the
purpose of advancing the plot! We have all built on the shoulders of
giants, and patenting gameplay elements or software only hurts the
industry as a whole, by restricting financial success to only those who
already have it, and stifling innovation in newcomers and small
development houses.
-Anonymous
No.
By patenting the things they come up with, innovation will be stifled.
No longer will people be able to build upon previous ideas to create
something new and cool. No longer will people be able to just
experiment and play around with game design or tech, because they'll
then have to get a lawyer in to analyze every tiny bit of code &
game design in the game to find out what patents they infringe on so
that they can get the licenses for them. Compare the amount of
innovation that has occurred in the past 15 years of game development,
and then compare that to the innovation in, say, the car industry, or
home appliances. Your kettle is almost exactly the same as it was 15
years ago, as is your car. Just with newer materials and more curves.
Meanwhile games (technology especially) have progressed in leaps and
bounds, and the sharing & open nature fosters this. People build on
top of everyone else's work, instead of being forced to reinvent the
wheel, or pay money to be allowed to build off someone else's work. If
the games industry embraces patents like these lawyers suggest, you can
kiss any improvement in any aspect of the games industry goodbye.
-Tristan Williams, Ratbag Games
Patents
are an antiquated system that hamper creative development instead of
harboring it. The concept of patents works great in a world where every
creator is a crook who can only form ideas by copying the competition.
Patents fail for those creators who prefer to envision their own ideas,
which in many cases may be very similar to ideas already created. It
takes away their time, delegating them to task of researching cryptic
patent documents to make sure their own idea is legal to use. If
developers focus on fully tapping the potential of an idea for their
game then competitors would have a harder time creating a better or
equal system. Even if the copied game improves the original idea, you
still win because you have something new to improve your own game with
for the sequel and the creative process continues.
-Anonymous
To
quote the article: "... to reward inventors who come forward and share
their inventions with the public by granting them a limited period of
exclusivity in which they can exploit the fruits of their labor." The
problem is that games are relatively short lived, thus patents offer
practically unlimited period of protection to them. Also a part of
designing games is to combine successful ideas. What would have
happened if say Westwood would have patented the RTS-genre at the time
of Dune II and decided not to license it to anyone? We would have never seen games like WarCraft and BattleZone,
not to mention the countless other RTS games. Naturally as long as you
can get patents for your games, it's good business to acquire them,
it's just not the game making business.
-Jarno Rajala, University of Turku
No,
for the same reasons I disagree with the concept of software patents in
general. Patents should be for implementations of systems that actually
have some mechanism that has a physical effect. Otherwise the trend of
defensive patenting will roll into the gaming industry, further
burdening the small independent developers. Patents were never
originally intended to be used to protect the invention of logical
concepts.
-Nathan Adams
Absolutely
not. Removing the ability to add new innovations to the work of others
forces the entire industry into a slow grind that will be outstripped
by other areas of the world where the patent frenzy in software has not
yet been achieved. Games achieve a level of complexity beyond the
ability of any law office to detail and discover every possible patent
within it at reasonable cost. Attempting to do so bleeds cash for no
net gain. "The only winners are the lawyers." Creators, sellers, and
customers all lose out.
-Charles Boland
The
way the U.S. deals with patents is absurd compared with Europe. What is
often neglected in assigning patents to software is that they have to
be innovative and that reasonably speaking, another person who
specializes in the same field should not be able to have come to the
same 'invention' without making a leap of logic. Almost none of the
software patents have this and should never have been approved. If you
look at the examples it's hard to imagine how these patents have been
allowed, there is nothing revolutionary about them. On the subject in
general, it is a popular belief among some of the most influential
software engineers that patents hinder progress. Instead of many
different parties working on a new concept, only one party has the
rights to and may allow other parties to work on it. In the U.S. the
patent system is unfortunately flawed, patents are assigned to
techniques or algorithms that should never have been allowed, sometimes
because they are already widely in use. Example: A system for
determining if two operands point to different locations in memory, the
system comprising: a compiler for receiving source code and generating
executable code from the source code, the source code comprising an
expression comprising an operator associated with a first operand and a
second operand, the expression evaluating to true when the first
operand and the second operand point to different memory locations. (IS
NOT OPERATOR) This patent was filed in 2003! My point, because of the
way patents work in the U.S., you unfortunately have to resort to
patents, because otherwise they can be assigned to others, even when
you were already working on, or even completed, a procedure or
algorithm that the patents covers. Until they fix the system, you are
forced to work with it.
-Anonymous
Absolutely
not. As an industry, we have always depended on a very open information
flow, both for design and technical ideas. The only ones who could, in
the short term, benefit from aggressively using patents would be the
big publishers, as they would have cross-licensing agreements. The
small developers would completely disappear, as they wouldn't have
resources to license patents, thus ending the source of most innovation
in videogames. In the long term, even the big publishers would be
affected. If we worry now that our industry doesn't innovate and that
every game is just a follow-up in an already established franchise,
imagine what would happen if innovation itself was in the hands of a
selected few. Think about it. Would Jak and Daxter ever be made
if Nintendo had patented platformers? Where would AI be if the A*
algorithm was the property of some big publisher? Think of all the
puzzles, like Lumines, that would had never been made if
someone had a patent on "Making similar shapes disappear when some
goals such as 'a line full of them' are achieved". In the article is
shown the typical absurd patent: United States Patent No. 6,604,008. I
was getting "Bonus for artistic impression" in Carmaggedon a
long time before this patent was filed. The article also says that life
would have been different if Russell had patented the idea of
videogames. Certainly, the videogame industry would have been a lot
smaller if only those with the money to get a license could develop
games. It's true, though, that Steve Russell deserves a lot more
recognition than he usually gets.
-Marc Ordinas i Llopis, Tragnarion Studios
I
understand the need to protect and nurture invention and creativity,
but big business (big money), invention, individual rights and the law
have not been happy bed-fellows recently.. However, if patents are
allowed (and allowed to be upheld) for increasingly abstract and vague
gaming concepts, then I fear all we'll be nurturing will be the
inevitable rooms full of people paid simply to research and patent as
many (vague, abstract) game concepts as they can (for their "major
player" employer).
-Mike Roberts, Profero
The
issue with patents in games is the same issue throughout the software
industry - innovation. In the related article, patents were given to
Sega for "a game method in which movable objects automatically move
away from an approaching character." Characters that can detect that
you're within X units of them and then move out of the way is hardly
original or counter-intuitive. I can't see a lot of time and money
spent to develop that concept. I have no problem with a software patent
if it's an advanced rendering technique or something that actually
involves some R&D, but stuff like this is just ridiculous. The fact
that it can be used as a legal bludgeon against smaller developers even
though it is insubstantial and easily disproved (although not cheap)
severely favors the companies that can sue their competitor into the
ground. I somehow don't think that's what patent law was envisioned to
do.
-David Koontz, Happy Camper Studios
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