One notable patent in the video game industry is #6,200,138 (or ‘138, for short). This is Sega’s:
Game display method, moving direction indicating method, game apparatus and drive simulating apparatus
Here’s a couple lines of that patent, representative of the rest, to illustrate the quality of writing present in this patent:
A game apparatus for executing a game in which a movable object is moved in a virtual space, comprising:
setting means for setting a dangerous area around the movable object;
“Movable object is moved?” If an object is moved, just say so, because it’s clearly movable. “Setting means for setting?” What does that even mean? I’ll spare you the agony of reading through this entire patent, and I’ll just summarize it for you.
Sega made the game Crazy Taxi. Fox Interactive made the game Simpsons Road Rage, a knock-off of Crazy Taxi. Sega sued for infringement based on patent ‘138, which basically says this:
You drive around in a city, rather than a race track.
There's an arrow that hovers around, pointing you to where you should go.
Cars have an invisible aura around them of "danger zone" and a bigger aura around that one called "caution zone." Virtual people in the danger zone jump out of the way. Virtual people in the caution zone stop walking, rather than walk into danger.
The size and shape of the auras described above can change based on the speed of your vehicle.
Now, Simpsons Road Rage and Crazy Taxi are incredibly similar games, and no one is even denying that. But the concept of driving around in a city where virtual people jump out of the way of your car is not exactly what Thomas Jefferson had in mind when he said that patentable inventions were to be new and useful, and you can forget about non-obvious. I also don’t think he’d be too happy that no one can make a game where you drive a car around a city with virtual people who jump out of the way…FOR TWENTY YEARS. The big picture of protecting the R&D of entrepreneurs is certainly not served by patents like ‘138.
Neither is it served by Namco’s patent 5,718,632, giving it a twenty-year government-sanctioned monopoly on using mini-games during another game’s loading screen. I don’t know how else to say this, but the idea of putting a mini-game in a loading screen is “obviously obvious.”
This kind of stuff is an insult to actual inventions. Somewhere along the way, patents started greatly hampering the advancement of technology, rather than cultivating it. One belief is that patents such as Sega’s ‘138 and Namco’s ‘632 are so laughable that they would never stand up in court. Well, they are laughable and I don’t see how they could stand up in court because they blatantly fail the test of “non-obvious to a person of average skill working in the field at the time.”
But the power of the patent is the power to threaten a doomsday not unlike nuclear warfare. Defending against even the craziest patent lawsuit is more than a $1 million endeavor (or at least that’s what patent lawyers tell me). Hardly anyone can afford to take this gamble, and anyone who does has a chance of losing BIG—a lot bigger than just the $1 million ante required to sit down at the legal poker table. When a patent holder sues for infringement, he’s entitled to reap the rewards of the “infringer’s” past sales. This encourages patent hoarders to wait until their prey hits it big, then sue, so the damages are astronomically (and unpayably) high.
And so the mafia-esque bullies will continue to bully. But what about Sega’s lawsuit over Crazy Taxi? Surely a court would interject some sense into this matter. Unfortunately, Fox Interactive was (somewhat understandably) not willing to stand up to Sega’s hollow patent, and so the patent was never tested. This encourages more bullies to bully more companies and demand protection money, while both sides escalate their nuclear arsenal of patents.
I guess I mixed metaphors of mafia and missiles just then, but the current situation is not unlike a war of mafia families with a dash of escalating nuclear weaponry thrown in, so I’ll let the mixed metaphor stand.
A lot of these problems stem from the way the US Patent and Trademark Office goes about determining what is novel and what is non-obvious. To find out whether something is novel, the patent examiner looks at previous patents and at published works to see if there is a discussion of the idea. The problem is that ideas that are bad, trivial, or completely derivative are not usually discussed in published works. In fact, serious publications (the ones the Patent Office would weigh the most) are the very publications that filter out all the bad, trivial, and derivative ideas, so of course they won’t discuss such ideas.
Just because you might not find any articles about “we could make video game controllers vibrate when the player gets hit by something in the game,” doesn’t mean the idea is novel, or that no one thought of it. In fact, so many people thought of it that probably hardly anyone submitted a serious paper theorizing about this feature ahead of time. It’s so far not even a very good feature, and yet it’s patented, and not by Sony (you’ll notice the lack of rumble in the PlayStation 3 controller).
And then there’s “non-obviousness.” The current test of non-obviousness has many problems, a fact that should be obvious by the sheer number of patents granted on obvious ideas. There is simply not enough emphasis on determining whether a person of ordinary skill would find the idea obvious. But there is also a more subtle problem with the process.
Suppose a group of 100 people of ordinary skill in computer programming separately encounter the same problem. This problem is so easy to solve that there are dozens of solutions. These 100 people submit, say, 45 substantially different implementations that solve this easy problem. Then one of them applies for a patent on a specific implementation.
Currently, that one person could claim that his particular solution to the problem was non-obvious and novel. That is vacuously true, as it’s entirely possible that none else used his particular method. In fact, his particular method might be a worse solution than the other 44 solutions mentioned above. Even though the 45 solutions are collectively “obvious,” this one particular solution is considered non-obvious, so the patent is granted.
But here’s the kicker: after he gets that patent, the courts seem to allow him to enforce it against people who used different solutions to the same problem! That’s right, even if your specific implementation to 1-Click buying is different from Amazon’s, they can still enforce their patent against you.
Courts do not always allow companies to get around a patent by using a different implementation to achieve the same goal. In Amazon’s case, Judge Marsha J. Peckman didn’t even need to review Amazon’s particular implementation of 1-Click buying because she considered any implementation to infringe on the patent. So, even if you developed your (different) particular solution to the 1-Click buying in parallel to Amazon and with no knowledge that Amazon was even working on it, you’re still out of luck.