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The Ten Most Important Video Game Patents

January 19, 2007 Article Start Previous Page 4 of 6 Next

6. The One That Never Was

Patents provide strong protections that are not provided by any other type of intellectual property. Unlike copyrights, which protects actual expression, or trademarks, which protect brand recognition and business reputation, patents protect ideas. There is no substitute for the rights conferred by a patent, and there is nothing worse than realizing a day late that you did not seek the patent you should have.

In what is now literally a textbook case defining the scope of copyright protection with respect to reverse engineering, Sega Enterprises sued Accolade in the early 1990’s for reverse engineering Sega’s Genesis console.10 Instead of taking a license from Sega to develop games for the Genesis console (because the license would have required that Sega be the manufacturer of all Accolade games), Accolade reverse engineered the console in order to discover the requirements for a game to be compatible with the Genesis console.

After determining the necessary compatibility requirements, Accolade created a compatibility manual for its developers, and began selling games for the Genesis console including Ishido, Star Control (left), Hardball!, Onslaught, Turrican, and Mike Ditka Power Football. Sega Sued.

Sega attempted to rely on trademarks and copyrights to provide protections that only patents can provide. The court saw through Sega’s arguments, stating that “[i]n order to enjoy a lawful monopoly over the idea or functional principle underlying a work, the creator of the work must satisfy the more stringent standards imposed by the patent laws….Sega does not hold a patent on the Genesis console,” and “[a] trademark is misused if it serves to limit competition in the manufacture and sales of a product. That is the special province of the limited monopolies provided pursuant to the patent laws.”

Ruling in Accolade’s favor, the court laid the foundation for reverse engineering as a fair use of a copyright—where reverse engineering is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, reverse engineering is a fair use of the copyrighted work.

Reverse engineering would not have been a valid defense had Sega had a patent, and if Sega had a patent, it might have even made this list.

5. The One That Gets Blatantly Copied

Patents are all about protecting ideas, and whenever there’s a dispute about patents, there’s a dispute about whether someone is unlawfully using someone else’s idea (or invention). Every once in a while, the similarities between the patent and the accused infringer’s product are striking.

U.S. Patent No. 6,200,138 appears to have encountered just such a situation, and for that reason it’s showing up on our list. The ‘138 patent deals with a video game concept in which the player drives a car around a map, and where a target destination is highlighted for the user. The following figure from the patent shows how an arrow can be used to point the way:

Sega’s patent covered concepts it used in its hit game, Crazy Taxi:

Crazy Taxi

When Fox Entertainment and Electronic Arts released a game having a similar concept, Sega was not happy. Fox/EA’s The Simpsons: Road Rage game seemed to use the same concept:

The Simpsons: Road Rage

Sega sued EA/Fox in 2003, and the case was settled not long after.

10. Sega Enterprises Ltd. v. Accolade Inc., 977 F2d 1510 (9th Cir. 1992).

Article Start Previous Page 4 of 6 Next

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