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The Designer's Notebook: Damn All Gameplay Patents!
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The Designer's Notebook: Damn All Gameplay Patents!

March 5, 2008 Article Start Page 1 of 5 Next

Back in 2005 I wrote a Designer's Notebook column called "The End of Copyright," warning that copyright, as a property concept, is probably on its way out. It's a "right" that was invented out of nowhere after the invention of the printing press, and it will probably fade away some time in the next hundred years or so.

Or at least, the business model by which such innovations are exploited will change substantially, and making copies will no longer be considered wrong. (Oddly, I believe far more strongly in the European concept of moral rights than I do in copyright, but that's a story for another time.)

This time my ire is directed at gameplay patents. Patents are different from copyrights in important ways. They're a lot harder and more expensive to get (it often takes a year or more for one to be granted), and they don't last nearly as long. A copyright, under US law, lasts until the author's death plus 70 years, which means that an author's great-great-great grandchildren can still be raking in the bucks from a work they had no hand in creating.

For those created by a corporation, the term is 95 years from publication. By contrast, patents expire after 20 years... but even 20 years is a ridiculously long time in the video game industry. Furthermore, patents restrict any use of an idea, not just a particular expression of an idea as a copyright does. They grant much broader control over the invention.

To receive a patent in the United States, an invention must be new, useful, and non-obvious. A patent consists of a claim, or more than one, regarding an invention that the inventor wishes to protect. Usually a patent contains multiple claims for different possible variants of the invention.

For example, the Namco patent on load-time mini-games (US Patent Number 5,718,632), as originally used in the PlayStation 1 version of Ridge Racer, contains 16 claims, many of which are almost identical to one another. Each claim is a description of what was invented. The terms in this description are called the limitations of the claim -- that is, the boundaries of what is claimed.

Another device or process infringes a patent only when it contains every single limitation of one or more of the claims. If a single limitation of a claim is missing, that claim has not been infringed.

Unfortunately, however, most patents are written as broadly as possible, with large numbers of claims to cover various different ways of implementing the invention. This makes it difficult to avoid infringing a patent by making minor changes to the invention.

Article Start Page 1 of 5 Next

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Seth Morgan
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I have at agree to some extent on the fact that patents do indeed hinder inovation and the spirt of programming. However I would like to make a point that although I feel that game mechanism should not be patented, a game concept should. As I understand the current laws thought, this is not a possible outcome, so game developers have to turn to mechanics in order to protect their art. As an independent developer I know I would be extreamly upset if I made a POC (proof of concept) demo and pitched my game to a game company, just to have them deny my idea, and turn around and steal it for themselfs. Sometimes using the wrong approch is the only way to protect yourself from others wrong doing.

Mike Lopez
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I completely agree gameplay patents will hurt our industry. What is strange to me is that patents are often defensive in nature, or in other words filed to be able to use a specific idea in the future. A perfect example in web software is the Amazon 1-Click patent. Jeff Bezos replied to some of the negative press with what amounted to a statement that their only intention was to keep using 1-Click and prevent a competitor from locking them out of that. Defensive publishing might be effective in some cases but it seems to me it still would not prevent the game team from having to defend the use in court when a patent is unreasonably granted (it seems software patents are granted all the time despite their design having been used in other software products in the past).

In the video games industry it would be great if the Publishers could band together to form sort of a patent co-op where they each shared patent initiation costs and patent rights and they could advertise on their games that they were proud members of the Video Games Patent Co-op (the organization would actually own the patents and keep collective control of them). This would give publishers incentive to participate (to gain access to all patents without the need for licensing or the worry or unintentionally infringing on them) and as the consumer became educated the participation in the patent co-op could become something they look for and in turn pressure non-compliant publishers to participate in.

The pessimist in me says most publishers are too greedy for such a progressive approach but I like to think that the majority of industry veterans such as myself who work for publishers see the slippery slope we are headed down with ridiculous gameplay patents like Midway's racing Ghost Mode or Sega's navigational 3D arrow (Crazy Taxi). We need a solution before it really gets out of hand.

Aaron Lutz
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I think there's a very good point made here, and I fully agree that patents on gameplay is entirely unnecessary. It's a serious problem we have in our country that this is allowed to happen. Copyright your ideas, your design documents, your character concepts, anything you feel could be stolen from you and render all your work useless, but don't patent your damn gameplay! If you did, you wouldn't have the wealth of options and variety that is currently saturating our market. People couldn't build on what you came up with to make something better, which in turn you could build on to make better. If we can't keep "standing on the shoulders of giants," we'll fall as an industry. And who would benefit, then?

Seth, you're totally right. Copyright the s*** out of your game concept! But don't patent the gameplay involved.

Mike, you also have a good idea. I don't think the game industry would ever get behind it, but it's an ideal future to hope for. Or, rather than pay for the right to make a first-person-shooter that throws fireballs from his eyes and can walk on ceilings, don't. Don't make people pay for the right to evolve the current gameplay, or use it in different ways, or change the face with a cool story and imagery but keep similar gameplay. Just make it open and free to anyone who could use it! If publishers were all required to pay for rights to the patents, there is going to be some brilliant game designer in his basement out there who can't afford to pay your fee, but has a great idea he wants to make.

Lorenzo Wang
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There are some flaws in your logic:

1. You claim patents are important, and use pharmaceuticals as an example of somethnig that couldn't be done without. Then you say that software, in contrast, does not require the a similar amount of research and testing. I should think every proprietary 3D engine, platform, etc. would beg to differ. Your quicksort algorithm is not an implementation, it's research. Something that you'd patent is if you figured out a "non-obvious" way to apply quicksorting to... say... AI routines.

2. It is not literally true that patenting something means no one can use a similar process; you chose bad examples. Amazon didn't patent buying with a single click, but a host of behind-the-scenes verfication schemes as well. James Pickard didn't just patent the crank, he patented the combination of crank and flywheel, which at the time was non-obvious, mostly new, and useful.

3. It is very contentious to state that video games aren't useful, and are not intended to accomplish anything. This means that America's Army is patentable, but World of Warcraft is not?

4. Video games may be a form of art to you, but so are some TV shows, some films, some music. While you can't patent the content, you can copyright them to hell and back. You don't seem to make a huge distinction between copyrights and patents other than their length of protection and costs. Code, visuals, music can be copywrit, why not design?

5. Being copywrit would not disclude a game from being imitated, so very little short of outright plagarism is lost to budding designers.

The real issue is that the patent system is not perfect. We should be able to apply for a patent if we want, but the system should decide whether or not it is warranted. New, useful, and non-obvious, those are the key terms that determine the patent. A new idea to put a mini-game during a loading screen to alleviate wait times CAN be all of those (not saying it is).

Your defensive publication "trick" is in vain unless there is a system to verify that you are the using your own invention. It doesn't need to make you rich for it to be patentable, you even point that out yourself!

Ultimately, game design, to a certain extent, is intended to be non-obvious, hence its entertainment value. Therein lies the best reason why game design should not be patented.

Allen Seitz
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I also see video games as more of a pharmaceutical type of thing. Lots of time and effort is spent inventing something that is trivial for any skilled person to copy. I agree that patent law needs a major reform, and that gameplay patents are absurd, but you have to give the inventors some sort of advantage. In your copyright article you suggested replacing copyrights with moral rights. Moral rights keep you in charge of your creation after you release it. I imagine patents as keeping you in charge of your invention after you release it.

Keith Nemitz
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I feel the author gave the subject an even hand, but I walked away from it with the impression that it equated a patent only with prevention. A patent can be used to license technology. I applied for my patent with the intention of protecting myself from large entities by charging them a good chunk of what it cost me to make and prove the technology.

Aaron Lutz,

For small entities, such as the eager indie in your example, I ask the nominal fee of buying a copy of 'The Witch's Yarn'. $13.

Raymond Grier
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I think I only have 2 quams with this article:

"Gameplay isn't useful! It's entertainment" is a contradiction. Saying it's entertainment very clearly demonstrates that every game is entertainment. i don't even need to bring up the fact that some games serve education and therapeutic USES.

The other point was about defensive publication. In my prior research of patenting I have learned that revealing your idea before patenting actually makes your invention public domain in some countries...something to look into before you decide to publish.

Jeremy Alessi
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While I agree that gameplay patents are choking the industry. I have a problem with this:

"That, however, is not my only reason for objecting to gameplay patents. I also object to them because they fall outside the intended purpose of the entire patent system. The U.S. Constitution authorizes the granting of patents in order to "promote the progress of science and useful arts." Gameplay isn't useful! It's entertainment. It is not intended to accomplish anything."

The term 'useful' in a patent application simply means that it does actually function. The way you have presented your argument in this segment relies on the subjective meaning of the term 'useful'. If the pursuit of a patent in any case relied on this logic then many inventions could be discarded.

One thing I think is key however is that software isn't tangible. Because of that fact, anyone can replicate the concept with no resources. It used to take years to go from conception to completion of a patentable and tangible invention because there was a lot of physical work involved.

Software is time consuming but it's not that time consuming. It's likely that most developers will derive a number of algorithms in their time. Patents were created when people were too busy surviving to ponder the little details, if someone came up with a great idea it was a big deal! These days useful ideas and implementations in software are a dime a dozen because people have a lot of time to sit on their butts, think, and type. Perhaps if we reformed the patent laws on software we could help alleviate the obesity problem too.

Nikolaj Leischner
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Lorenzo Wang,

developing pharmaceuticals costs hundreds of millions, it can even cost billions and can take more than a decade of research and testing. Producing them is relativly easy then. Plus pharmaceuticals usually have a much higher life span than say video games.

Jeremy Alessi,

I am not fully aware of how the US patent law is meant to be interpreted but from what I know it is not that much different in that regard from European law. And at least here 'useful' is meant in the literal sense. The thing to be patented needs to have a use. If something does function but doesn't serve a purpose it can't be patented.

Shane Whelan
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The idea of stockpiling patents defensively, so that nobody else will attack you with them, while simultaneously promising against taboo that you will not use them agressively yourself is a wonderfully absurd stalemate that would work well as a game mechanic. Players can choose to buy patents in Dollar, Euro, or Yuan currencies for wildly different game types.

It's the artistic equivalent of the Cold War, and I would like to be the first to identify it as a game concept here on Gamasutra.

Well, now that it's now in the public domain and cannot be patented, I'll leave it lying around for anyone who wants to develop it and since I'm far too busy to develop it myself, the IP is up for grabs. Any takers?

Daniel Morrison
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I believe the stupidity of gameplay-patenting should be consummated with an attempt to patent our systems of government and all legal processes (including patenting processes).

This would be immensely more feasible, than patenting gameplay.

A fundamental component of gameplay is the emotional and psychological experience occurring in the mind of the player while playing the game. If this is absent, there is no gameplay and no basis for defining the product as a game. While a player will have a particular experience of gameplay that is unique to a particular game, this experience of gameplay will be unique to that player alone and will also change over time.

In order to patent the gameplay derived from a game, every instance of every user's experience of the game (real, imagined or dreamt) would necessitate the filing of a patent on behalf of the developer.

Proponents of gameplay-patenting may think their idea is terrific, but the practice is parasitic, killing off the necessary activities that made the industry profitable in the first place; and it exhibits an utter failure to comprehend the processes of the development and consumption of games, that is too embarrassing to even laugh at.

Mike Anderson
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Even if a designer didn't agree with everything in this article, at least it forces them to consider the role of patents in game design and hopefully spark more discussion on the topic. After reading this and Lessig's Free Culture, I'm coming around to the idea that copyrights and patents in their current form are doing more harm than good.

While I can understand the position of Keith Nemitz when it comes to licensing technology, I fear that it is more common for large entities to use the threat of patent and copyright lawsuits to prevent smaller entities from competing with them in the first place. I shutter to think of what would happen if Sierra managed to patent the graphical adventure gameplay mechanic. Even worse if they followed the trend of pharmaceutical companies in artificially extending their monopoly on the market by slightly tweaking the original invention (say using icons for interaction instead of typing sentences, a la SCUMM ) and patenting the new system. That's 20 years of no one able to make graphical adventures without paying Sierra-controlled licensing fees, and another 20 years of third-party games getting limited visibility because the market adopts and expects the SCUMM-like interface.

I don't understand how one can justify "standing on the shoulders of giants" by improving an existing non-patented mechanic like SCUMM, then turning around and patenting their contribution so no one else can follow in their footsteps. I don't mean to single this one case out; I'm sure Keith is a great guy and Witch's Brew looks like a lot of fun. I'm just worried that this is going to result in lots of developers paying a lot of money in lawyer fees and patent applications, fewer games being made because of the added expense, and all of us worse off because of it.

Dean Wadsworth
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Patents are the business mans pipe dream of owning the market. For over a decade I've contracted for numerous IT companies and my soul job was to find ways around patents. In short it's very simple. As stated you need to contain all the claims in a patent in order to violate one. So unless your into making clone games, you have nothing to worry about. By changing one process you can change the entire method and this technique has being used time and time again to work around patents.

Very few people understand patents. You can't just make a generic patent to cover a wide range. And each country has it's own laws and regulations. There is the PCT and even though China has joined it, no patent has ever stood up in this country. If you could just patent a broad claim, then I'm sure someone would have filed a patent on breathing and we'd all have to pay or stop breathing.

Many game companies patent their game play such as: NCSoft, Square Enix, Activision to name a few. They do this for the buy verses build. Other companies wanting to clone their games, simply license their engine or right to do it and avoid law suites. Anyone wanting to just clone someone's IP should have to pay. If anything just for the reason of cloning it and not coming up with something new and innovative themselves.

To sum it up, alls it takes is a little out of the box thinking and creative imagination to break patents. In software there is limitless ways to accomplish similar end goals. And as game creators we should always be focused on something new and different instead of looking over the next guys shoulder and trying to copy it. After all this is an industry of entertainment and people don't want to see the same thing over and over and over again.

Lorenzo Wang
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Nikolaj Leischner

Are you saying that cost of development determines patent eligibility? And that when the government spends billions of dollars on crappy defense software, suddenly that software is patentable over other forms of software?

Hung Tran
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I'm not involved with game development though I've been looking into this industry and have read many many times that the first and last response to new people coming into the industry is that there is no new ideas.. or rather ideas are worthless unless someone do something about it.

As a fanatical gamer who owns every system that he can afford at the given time over a couple of decades those advices seem quite true. It seems like new ideas in games come in iteration often repeating or slightly incrementing ideas from the prior generation. So given that - isn't it obvious that it's a bad thing that someone can take an idea the "inherited" openly from predecessors to patent and own so no one else down the road can benefit from it? It just seems like overall its bad idea in the long run for all involved in the industry from publishers to developers and most importantly gamers! Even if this makes sense from a business standpoint it's very short sighted strategy and those who do it clearly don't put customers e.i. gamers first.

I think the only people who benefits from this would be atrocities will be lawyers. And as a gamer i'm already paying $60+ on games after shelling out ~$300 (not to mention my PC hardware and GPU).. I'd rather not be paying $80+ for games because the industry have to pay attorney fees due to patent games.

Nikolaj Leischner
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I am saying that how beneficial patents are depends on the type of product and market. If there were no patents for pharmaceuticals no one could afford to invent them. That is different for software.

Lorenzo Wang
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Again, you are saying that economic feasibility should determine patent eligibility. That is not what our patent system is for. Our system may protect some economical interests, but it was created to encourage public disclosure of invented and innovated techniques, just as the author says.

Chris Rock
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I definitely like the radical stance and preference for disrupting the status quo.

I also would like to see things freed up by a reformation of such badly designed legislation. On the other hand, I'd plan on patenting as much of my games as possible, just to make sure that while this bad system still exists, I can at least use it against the guys that exploit it more often in the name of greed. Of course, I'd understand if others feared that level of control and judgment, but once someone agrees to handout work for free, they've probably earned some trust.

Jeremy Alessi
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Nikolaj Leischner:

What you and I said are the same thing. Game are literally useful. They have a use (many in fact) and they function so they are covered. I've done my fair share of patent research and 'useful' was a term often covered due to the subjective twist which can be applied to the term.

What Mr. Adams stated is that video games aren't useful, which is completely false not to mention the fact that the statement only causes further degression to the stature of the entire video game industry.

Video games are amongst one of the most useful tools of our generation. That of course is a subjective statement. Millions of people use video games everyday. That statement of course is not subjective. Do you see the dilemma?

Jamie Mann
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As people have pointed out elsewhere - and it's even noted on the Wikipedia article - Namco's 1995 patent can probably be invalidated by prior art during the 8-bit era (e.g. Skyline Attack on the C64 in 1985, Joe Blade II on the Spectrum in 1988 - which ironically had a Pac-man clone as it's mini-game).

This goes some way to demonstrating the fallacy of game patents: in an incredibly young and rapidly evolving industry where entry costs are virtually nil, the odds that someone has already done something similar is very high. The odds that you'll be building on someone else's work is even higher.

Even much-mooted features like the Prince of Persia's time-control mechanism have their roots in older games such as Fatal Rewind, which lets the player jump back into a failed level at any point - this technology was derived from action replay technology, which itself is based on arcade attract-mode technology (plus a helping hand from tv sports coverage).

Patents in this context can only lead to disaster: instead of encouraging innovation, they stifle them. Imagine if ID had patented the 3D FPS concepts shown in Doom: with a 14-year design patent, people would only be freely able to innovate as of last year without paying royalties to ID. The industry and the technology which drives the industry move too quickly for that to be of benefit to anyone.

That's not to say that companies shouldn't have the ability to protect their IP, but there's a fine line between encouraging innovation and stifling it.

Ronny Anderssen
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I agree on the points you make, the US patent-system just don’t work as it is today.. It restricts freedom of creativity which in my opinion is synonymous with restricting creativity. Cause there can’t be any *real* creativity without freedom!

Just imagine if everyone and their cat patented all the innovative parts of their game…. On one side, it would demand innovation in games, no matter what! On the other side, it would kill all indie-developers, since only the big companies would be able to afford the extra cost from using someone else’s patent.

Or it would kill all innovation whatsoever! Cause all the big companies would patent their innovations and stick to them, never straying from the patented path. It would be even worse than it is today…

Lorenzo Wang
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Not ot be contrary, but some of the greatest innovations were created BECAUSE of limitations. If iD had patented the 3D FPS concept, we would have a plethora of better camerawork algorithms to handle all the 3rd person POV games there would be.

Jamie Mann
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Possibly, but lets say that each algorithm which is discovered gets patented (and they will, even if it is just as a defensive mechanism). How long before the only people able to write "3D FPS" games are those who have a big enough war-chest to be able to force cross-licencing? How much time and effort will developers have to put in, to identify a new algorithm which doesn't infringe on someone else's IP? How much will they have to spend on patenting anything which appears new, in case someone beats them to it?

Where's the fun and innovation in having to continually having to search for prior art every time you have a new idea?

(ID actually had exactly this problem with Doom 3, as an algorithm created by Carmack turned out to be already patented by Creative. ID were able to resolve the issue by promising to use EAX, which persuaded Creative to licence the patent at zero-cost, but there's not many games companies with enough credibility (and rabidly vocal fanbase) to get away with this)

The only real winners with patents are the lawyers: everyone else just ends up paying more to do what they were already doing.

With all that said, we are finally getting to the point where licencing of technology is starting to make sense, as games grow more complex and players get more demanding: it can be quicker and cheaper to licence some middleware, a physics engine and a 3D sound engine. This doesn't require patents however: the existing copyright and licencing laws do the job nicely.

Robert Gauss
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I didn't realize this was a problem until the "1-click" patent. From there on out, I realized that anything that is not a real mechanism does not fit the concept of a patent. Even the rumble feature shouldn't have been patentable outside of the devices that make it possible. As you said, this only helps patent trolls, which indicates the patent isn't even being uses as it is supposed to. Ideas should be free as the US Constitution intended.