12/01/2015
How can computer games makers obtain patent protection in Europe? Pete Sadler assesses decisions by the European Patent Office and explains the Office’s thinking in the December’s edition of Managing Intellectual Property.
As The Buggles famously told us, video killed the radio star. But computer games have been waiting, for some time, to take centre stage in the entertainment industry. With estimated global sales of $93 billion in 2013, it should be no surprise that companies such as Nintendo have long sought to protect their games by any means possible, including by patent.
It is well established that the European Patent Office does not grant patents for pure software innovations. However, inventions having a technical character that happen to be implemented using a computer program are not excluded from patentability, in particular where the program provides an additional technical effect beyond what would usually be expected from a program operating on a computer.
With computer games this can present a challenge since, by definition, they are dictated by a set of abstract game rules and embodied as software running on a system designed specifically for that purpose. So how have computer games been successfully patented in Europe in the past, and what can we learn from this?
Below are some tips derived from looking at a handful of strategies previously adopted by applicants before the Technical Boards of Appeal (TBA) of the EPO. Some of these succeeded in getting a patent granted without resorting to cheating using that gamers’ favourite, the Konami code.
Joypads ready:
New Rules For Old Games Are Not Patentable
According to the Board deciding in case T 336/07 a game rule forms part of “the regulatory framework agreed between [or with] players concerning conduct, conventions and conditions that are meaningful only in a gaming context [and which, as such] is a purely mental, abstract construct”. In other words, rules form the formal structure describing the interplay between a player’s actions and the choices offered within the game. The rules are what cause your character to explode when hit by an oversized futuristic particle weapon, among other (less violent) things.
In case T 1782/09 the applicant tried to patent a modified game of Tetris. Rather than blocks always dropping from the top of the screen to the bottom, the idea here was to change certain types of block combinations into rising objects that get cleared when they reach a particular position on the screen.
The problem the applicant faced was that the only difference over classic Tetris came from the new rules of the game. The application only described these rules being achieved by general “means”, so there was no further advantage or effect other than the game being played slightly differently, which was decided to be non-technical. As a result the invention was held to be un-patentable, all the while the Board making snide jokes (one assumes) about knocking the applicant’s block off.
But How You Implement The Game Rules Might Be Patentable
Patents may not be awarded for new rules, but the Board in decision T 0012/08 indicated that an invention might be patentable if it is not concerned with the game rules per se, but with the particular manner in which the rules are realised. In this case the game rules required characters to appear randomly as the player progressed, but the patentable invention lay in how these random appearances were achieved.
The game in question was the type in which a player character moves around on a map and encounters other game characters. The example given in the patent application was the Pokémon video game, in which a small child is compelled to incarcerate an entire population of imaginary mutant abominations. The appearance of game characters was governed according to an “appearance probability” that varied from character to character. To make things more unpredictable, and hold a player’s interest longer, these probabilities also varied with time.
The probability calculation solved the problem of how to modify the game program such that it generated encounters in a less predictable manner. The Board found that this problem, and the solution, had a clear technical character. The solution was directed to a software program interacting with a clock to form a time dependent random event generator. This was deemed to be a further technical effect beyond mere software running on a computer.
Happily no animals (virtual or otherwise) were harmed in the making of the decision.
Making A Game Easier To Play, Or More User Friendly, Might Make It Patentable
Case T 0928/03 is popularly known as the “Konami” case within the circle of patent professionals. The invention concerned the way in which footballer characters in games such as FIFA or ISS Pro are marked on screen to identify the player that has the ball, and the players to which the ball can be passed.
When a player (P1) has the ball a team mate (P2) is highlighted with a guide mark (G3) so that they can be easily identified and the ball can be passed. When the team mate runs off the screen the guide mark is still displayed on the edge of the display area to indicate the direction in which the ball would be passed.
The Board held that these aspects provided an underlying technical contribution beyond the game rules. In particular, highlighting a second point of interest (a team mate), in addi- tion to the player with the ball, draws the user’s attention to the second point on the screen. Also, the invention deals with the conflicting requirements of being sufficiently zoomed in on the player with the ball for accurate control, but also displaying enough of the pitch to see what is happening elsewhere. The Board felt that resolving this conflict by technical means required a technical contribution sufficient to allow them to grant a patent.
But This Has Limits…
At stake in case T 0042/10 was a patent application for an invention aimed at stopping players getting “pwned”* too easily by tracking player performance and identifying suitable online opponents. The particular advance being claimed was the performance tracking calculation. The applicant’s hope was that the invention could make games more user friendly by reducing the number of middle aged gamers being mercilessly humiliated by sadistic 12-year-olds.
The applicant argued that the method of assessing player performance was technical by virtue of being a method of measuring something. The Board conceded that methods of measurement could be technical if they addressed a technical problem, such as how to measure reaction times or hand-eye coordination. However, this was not the case here; although these aspects would play a role in the player’s performance, they were not used or directly calculated according to the method described in the application. In fact, the invention only needed to receive information about the outcome of a game in the form of a ranking of a player. The Board also noted that there are equally times when measurement would not be technical, such as the measurement of reactions to odours (as in case T 619/02).
Given that there was no technical limitation of what was being measured, the Board held that the method was not patentable.
* Wikipedia describes “Pwn” as a leetspeak slang term derived from the verb to own, as meaning to appropriate or to conquer to gain ownership. The term implies domination or humiliation of a rival, used primarily in the Internet-based video game culture to taunt an opponent who has just been soundly defeated (e.g.,“You just got pwned!”).
The Technical Advance Also Cannot Be (Solely) That It Makes The Game More Enjoyable
Still referring to case T 0042/10, the applicant also tried to argue that its invention addressed the technical problem of keeping players interested by finding them suitable opponents. The Board countered that improving amusement is not a technical problem, quipping that “[i]f it were, any dull computer game could be regarded as posing a technical problem that could be solved by any less dull game”.
On the same subject, case T 0188/11 concerned a kart racing game in which two players with separate controllers play together by operating the same kart.
A first player controls a kart driver and a second player controls a fellow passenger. Both player characters ride on the kart, but the first player steers and the second player influences control by applying their character’s weight to the left or right. The idea was that players would enjoy cooperating with each other by acting as a team. In reality younger siblings everywhere simply learned to exploit Donkey Kong’s ample frame to cause a crash at every opportunity.
The applicant argued that the combination of characters having different weights and being able to swap roles was technical. They reasoned that weight is intrinsically technical and that swapping players resulted in a change of the physical characteristics of the simulated kart system, which surprised players when the swap was made.
The Board held that attributing weight to a virtual character in a game did not have a physical effect, since a virtual character does not have physical weight. The only effect was to determine the way the virtual characters responded to user inputs in the game space. This was held to be a purely abstract concept and part of the structure or rules of the game, “for example in order to make the game more interesting or more realistic” and the application was refused.
The Technical Advance Can Be An Improved Way Of Computing Game Play Mechanics
In T 1225/10 the application related to a game in which a player character would move through a field of background objects, and collisions with these objects would cause responses dependent on the collision direction. A good example of this type of game is Capcom’s Super Ghouls and Ghosts.
The invention was concerned not so much with the underlying game rules, but rather with the way they were implemented by the game program. Collisions were detected from the overlap of the character and the background objects, with the side of the object hit by the player character being determined from particular points on the player character that overlapped with the object.
This technique was seen as a computationally effective and efficient approach to determining the collision side on a target object. Rather than being the inevitable result of programming the game rules, the Board held that the technique was the direct technical consequence of the particular way selected data was used to determine a display state.
The table below provides a summary of the cases discussed.
|
Case |
Claimed Advance |
Patentable |
Reasoning |
|
T 336/07 |
Electronic video poker machine that allows a player to play several separate games by automatic transfer of held cards to other hands. |
No |
The concept related to an agreed convention in game play, which was considered to be a game rule. |
|
T 1782/09 |
New rules in Tetris whereby objects rise as well as fall. |
No |
The games rules were not technical and there was nothing technical in how they were implemented since the application only generally described the new rules being implemented by general “means”. |
|
T 0012/08 |
Calculation for random appearance of characters in a game. |
Yes |
The probability calculation solved the technical problem of how to modify the game program such that it generated encounters in a less predictable manner. |
|
T 0928/03 |
Highlighting football game player characters so that they can be easily identified and the ball can be passed. The pass guide mark continues to be displayed on the edge of the display area when target character leaves the visible area. |
Yes |
The invention dealt with the conflicting requirements of being sufficiently zoomed in on the player with the ball for accurate control, but also displaying enough of the pitch to see what is happening elsewhere. |
|
T 0042/10 |
A calculation for tracking player performance and identifying online opponents of similar skill. |
No |
Determining a parameter related to player performance could be technical if measured in a technical way, but the application did not perform any sort of clever measurements. Keeping players interested in a game is also not technical. |
|
T 0188/11 |
A game where a kart is driven by two characters controlled by different players. The characters had specific attributes like weight, and they could swap roles during the game. |
No |
Virtual attributes of characters do not have a physical effect, they simply mean that different characters respond differently to user inputs when moving in the game space. |
|
T 1225/10 |
Collisions between a game character and background objects calculated based on overlap of the character and the background objects, with the side of the object hit by the player character being determined from particular points on the player character that overlapped with the object. |
Yes |
A computationally effective and efficient approach to determining the collision side on a target object. Rather than being the inevitable result of programming the game rules, the technique was the direct technical consequence of the particular way selected data was used to determine a display state. |
The Final Boss
The cases discussed above are just a selection, but they highlight a common theme. What is important when protecting computer games, or any software invention for that matter, is the nature of how your game differs from what has been done before, and how this difference is achieved with technical means.
If the only difference is that the game rules provide for a new user experience then the EPO will not grant a patent. One must look beyond the game rules themselves, at how they are implemented to achieve the desired outcome. If something more has been done in addition to, or despite, the game rules, and it can be argued that a technical problem has been solved, then patents can be collected just like a hedgehog collects rings, or a plumber gathers mushrooms.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.
