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Patent Strategy in the Game Industry


May 25, 2007 Article Start Previous Page 2 of 6 Next
 

The good news for the game industry is that much of the new creative work that is done in this industry may be eligible patents. For example, as discussed earlier a new controller may be patentable or a new video card or even a new way of visually displaying the graphics on a computer. Patents have been granted on such things as the rumble feature available from some video consoles as well as the way that the three dimensional graphics are displayed via camera functions.

Even though the scope of possible subject matter is very broad, not everything is subject to the grant of a patent. To understand what is not covered by a patent it is helpful to examine the other areas of intellectual property. Trademarks, for example, cover the identifying marks on goods and services of a company. These marks are indications of source and allow the consumer to recognize a source of consistent quality. These marks however, would not normally be covered by patent law because they are not adding any new and useful technology.

In the context of the game industry, copyright and patent law may be considered to be different sides of the same coin, both potentially protecting separate and distinct portions of the same work. Copyright is directed to the protection of a work of authorship or expression. Specific to the game industry, copyright can be used to protect the underlying coding used to write software, hardware design, or the specific story involved in a game.

To understand how these three types of intellectual property work together, we revisit our friend Beth who has decided to take her new controller to market.

Example C. Patents and Trademarks and Copyrights, Oh My!

By some future miracle, body odor is actually useful in gameplay mechanics. In this alternate universe, Beth does manage to patent her body odor controller. Now, armed with a patent Beth is ready to market her new controller to the odoriferous public. To make sure that the new controller will interface correctly with any computer, Beth writes a program containing complex and specific code which she then includes with every controller.

During one of her many brainstorming sessions, Beth decides to name her unique controller the ODORFRON 2010. Days before the ODORFRON 2010 is going to market, Beth suddenly realizes that she only has applied for a patent on the controller and seeks advice on how to protect the rest of her intellectual property. Her legal counsel informs her that she will not be able to protect the name ODORFRON 2010 through the patent law. The name ODORFRON 2010 may, however, be registered as a trademark.

Depending on the software implementation, the invention embodied in the code might be patentable in some countries. In addition, copyright protection is also available because copyright for source code is allowed in most countries.

This example hopefully has provided a general understanding of some of the differences between and applications of copyright, patents, and trademark.

Anatomy of a patent: What does a patent look like?

Every patent is composed of the same general parts. On the first page or “face” of every patent issued by the USPTO it lists the title of the patent, the patent number and the date on which the patent was granted. The inventors of the patent are also listed on the face of the patent. This includes anyone who contributed to conception of any part of the patent.

Immediately below the inventors is listed the entity to whom the rights in the patent were given at the time the patent issued, also known as the assignee. This can be deceiving because this information does not change if the rights of the patent are given to another entity after the grant of the patent. Therefore, there is no guarantee that the assignee appearing on the face of the patent has not given its rights to another entity who has in turn granted its rights to yet another entity. The current owner of the patent rights can be crucial information if the patent covers subject matter that your company needs or would like to use. To assist with this issue, the USPTO provides on its website information about the current assignee.2 The face of the patent also contains the abstract of the invention which is a very brief summary of what is protected by the patent.

On the pages following the face of the patent is the section called the specification. This section includes the background to the invention including the state of the technology on which the patent is based. The specification then explains the invention that is the subject of the patent. The purpose of this portion of the specification is to allow a person working in the same field that the patent pertains to be able to carry out the invention based solely on the specification. The specification typically will also include technical drawings and examples to assist in the understanding of the patent.

 

2 This information is available generally at http://assignments.uspto.gov/assignments/q?db=pat. Although the PTO attempts to keep this information up to date, it may not always be 100% accurate. Nevertheless, it is the place to start looking for the current owner of the patent rights.


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