As an illustration of the scope of patent protection versus copyright protection, Incredible Technologies, Inc., the developer of Golden Tee Golf, sued Virtual Technologies, Inc., for copyright infringement based on Virtual’s game PGA Tour Golf, which was specifically created so that players of Golden Tee could switch to PGA Tour Golf with little difficulty.2
PGA Tour Golf essentially copied, with some stylistic changes, the layout of buttons and instructions found on the Golden Tee control panel. However, Virtual had been careful not to copy the artwork, image, or sounds from Golden Tee. In finding no copyright infringement, the court stated:
an item may be entirely original, but if the novel elements are functional, the item cannot be copyrighted: although it might be eligible for patent protection.
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The trackball system of operating the game is not subject to copyright protection. Functional features, such as the trackball system, might, at least potentially might, be eligible for patent protection.
Had Incredible Technologies sought patent protection for the method by which a player uses a trackball to swing a golf club in Golden Tee, or for a machine programmed to provide Golden Tee’s specific interactive style, the outcome might have been different. However, patents can be expensive to obtain, often costing tens of thousands of dollars by the time the patent gets issued.
The fourth form of intellectual property is perhaps the easiest to protect. A trade secret is basically all its name suggests – a piece of information that you keep secret. Each state has its own trade secret law, usually as part of its laws against unfair competition, but the requirements are generally the same: a trade secret is information that has business value, that is kept secret, and which was taken without permission.
The most common form of trade secret misappropriation occurs when former employees of one company go to work for a different company, and take with them information (e.g., customer lists of registered game players in a virtual world, manufacturing techniques or tools such as unreleased in-house software used to create game levels, etc.) that the first company tried to keep secret.
For your part, if you have developed in-house information that is of value to you, and you want to protect it as a trade secret, all you have to do is take reasonable precautions to keep it a secret (e.g., controlling access to the information, having employees agree to keep secrets, well, secret).
Each form of intellectual property has its advantages and disadvantages. Patents provide the strongest protection, but are the hardest to get (and most expensive), and remain in force the shortest amount of time (usually about 16-18 years). Copyrights are easier to obtain (and less expensive), and last a long time (at least 70 years), but have the narrowest scope of protection (only your specific expression is covered).
Trademarks last as long as you keep using the mark, but do not prevent anyone from copying your games, and trade secrets last as long as you can keep a secret. The strongest approach is certainly to pursue all four as appropriate, but don’t overlook the benefits of even one or two forms of intellectual property protection when budgets are tight, because intellectual property is often the lynchpin of a company’s success.
2 Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007 (7th Cir. 2005). That will be the only case cite in this article, we promise.
[The authors are Principal Shareholders in the Washington, DC office of Banner & Witcoff, Ltd., an intellectual property law firm. The views expressed in this article are solely those of the authors, and should not be attributed to Banner & Witcoff, Ltd. or any of its clients. Nothing in this article should be construed as legal advice. Each situation is different, so always seek guidance from an attorney regarding your situation. For more information the authors may be reached at (202) 824-3000 or [email protected] and [email protected].]