Spurred by the controversial article regarding software patents by Ross Dannenburg and Steve Chang that Gamasutra published last week, the latest Question Of The Week asked, “Do you agree with the concept of patenting specific video game concepts, either game design ideas or technical innovations?”
Due to the flood of responses we received, we've taken a small sample of responses for your convenience, and have appended the rest in unedited form. The authors of the original article have also submitted a new Letter to the Editor to Gamasutra in response to the initial response to the article, which included extensive coverage on technology site Slashdot and responses on a number of weblogs and message forums.
Software-Related Patents? Yes/Maybe.
Of the few respondents that answered affirmatively to the concept of patenting game software innovations or design concepts, each had one caveat or more to their replies. This group agreed that "unique" technical innovations should be protected, while acknowledging the negative stigma attached to software patents due to high-profile lawsuits. But also acknowledged was the fact that certain high-profile titles would have never come about had the concepts of their predecessors.
Illustration by Erin Mehlos
I see no problem patenting technical innovations to the extent they are novel and unique and advance the state of the art. Obtaining a patent is a long, tedious, and expensive process, that it can be challenged by the examiners and later by others in court. It exposes your idea to the public as the applications and any supporting documents become public documents. Others can use the concepts along with other new ideas to create a new invention that goes significantly beyond your original idea. You can also end up spending endless hours and expense defending your patent once you learn of infringement. Alexander Graham Bell spent the next ten years of his life defending his patent of the telephone.
-Ed Magnin, Magnin & Associates
The videogame industry is growing and everyone involved has to have that competitive edge or else risk going under. Patenting an idea is meant to protect that competitive edge. Then again, the ideas behind games and design are usually built up from the efforts of our predecessors and it's this drive to refine and improve that got us where we are today. The only time I ever hear about a patent is when company A is suing company B over it which is probably why it's a touchy subject. I support patents on design and technology as long as it protects the individuals/companies involved, but when it's used to stifle creativity and innovation then it becomes detrimental to the natural evolution of videogames.
-Carlo Delallana, Ubisoft
Without a question, technical innovations and specific game technologies should be patented and protected. The gray area for me is in terms of patenting game design concepts and gameplay dynamics. On one hand, protecting game concepts and dynamics with patents would empower game designers, and stop the hemorrhage of cloned games we see across all sectors of the industry. The prevalence of these copied dynamics is hurting our industry by stunting the growth of our audience's palette for different types of games, and restricting the audience that we attract to our art form. That said, all game design does not have to be revolutionary. Some evolutionary games have defined our industry in an extremely positive way. The games I always cite as my favorites (Halo, X-Wing, ToeJam & Earl, and Super Mario Bros.) were all evolutions of an established genre, but they undeniably contributed to our industry in a meaningful and beneficial way. I think the solution is for our legal system to develop a stance on game design and development that allows for iteration and evolution of gameplay concepts and ideas but that protects existing gameplay mechanics from being ripped off, retextured, and sold as new. Alas, easier said than done.
-Coray Seifert, Large Animal Games
I have no problem with software patents which are issued about intricate algorithms, like RSA. What I really hate is seeing patents issued for things which are obvious, and even more, to patent ideas which have already been used many times before. Actually this is in contrary of the principles of the patents system, which is here to protect inventions which are "new, useful, and non-obvious". Seeing such things happening, I think the patent office shows an incompetence in handling the software industry, probably because of a lack of through knowledge of it.
-Ondrej Spanel, Bohemia Interactive Studio
Software-Related Patents? No!
The vast majority of the respondents to this Question Of The Week were against the concept of software patents , and those that answered "no" answered with a great deal more fervor then those that said "yes". Among the reasons cited were a decided lack of expertise by the U.S. patent office, leading to costly and cumbersome litigation, that the very reason for the rapid growth of the games industry was due to a general lack of patents allowing ideas to be quickly built upon and refined, and that beyond stifling innovation, patents would be used to crush the "little guy." Also brought up was a large disparity in how patents are handled in the U.S. compared to Europe and Asia, where it is often harder to enforce certain patent rights.
Patents will only serve to ossify an already hardened market that few original IPs can penetrate, bringing the whole industry into a quagmire as lawyers fight out the definition of what parts of games can be patented, and add stress to an already overloaded court system.
No, and especially not for a term of 17 years. If the term were reduced to something more reasonable (say, 3-5 years) and if it is demonstrated that the patent office can do a far better job then it currently does with regard to determining the novelty of software inventions, then my feelings might change.
The idea of patenting is based on the notion that "someone other than the patentee of a particular idea can only make use of the idea by first copying it off of the patentee". But this notion is false. No matter what the invention, it is always possible for another person to invent the same thing independently. It should never happen that someone invents something but then discovers that they are blocked from selling it because of the Patent Office. Before awarding a patent, then, it should be established that there is very little chance of anyone else developing the same idea independently during the period covered by the patent. Unfortunately, considering that "double-clicking" (6,727,830), "drawing using XOR" (4,197,590), "run-length encoding" (4,207,599, 4,872,009), "one-click shopping" (5,960,411), "tabbed menus" (5,546,528), "using the internet for chat" (6,449,344), "buffering video" (5,371,551), "rotating a 3D camera" (4,734,690) and "mini-games during loading" (5,718,632) to name a few, have all been patented, it seems that no one at the Patent Office is even considering the difficulty of contriving a particular invention before they stamp it "approved" and collect their fee. What will we do when some company decides to sue us for infringing on their "method for turning letters from lowercase to uppercase" patent? It is said that Elisha Gray and Alexander Graham Bell each independently developed the telephone at the same time. But since Bell was a few hours earlier in his patent application, he was awarded exclusive rights to market his invention. Doesn't anyone care that Gray suffered an injustice here? The fact that there were two people inventing the telephone simultaneously (and many more who were less successful) should have been a clue that the invention was just a corollary of recent and more important developments, and that there was no justification to oppress all inventors but one. When people are scrambling to the patent office to try to be the first in line to file their application, as is usually the case with software patents, it cannot be for an invention that is worthy of a patent.
-James Martin, Lumental
Software patents slow down innovation and increase the barriers to entry for startup developers. They are overly protective of rich established businesses due to the cost of patent defense. Patents reduce customer choice and bias the market in favor of the richest corporations. Patents don't encourage invention - they stifle it.
-Martin Linklater, Curly Monsters
I think the video game industry is seeing the effects of software patents with the recent McKool-Smith lawsuit. While patents may have the purpose of encouraging innovation, and may have even been effective at doing so for physical inventions, the fact of the matter is that current patents on software are horribly broken. The patent office doesn't have enough expertise or manpower to seriously examine patents on software to determine whether or not they are obvious or violate prior art restrictions. They depend on the courts to decide, which only works for people that can afford legal battles. Plus, the length of patent protection was meaningful in slower times, but will a software or gameplay invention still be relevant in twenty years? Coupled with the incestuous cross-licensing that goes on among large software companies, this makes for an environment that stifles innovation in small game companies and software houses - while writing any piece of code, no matter how novel, you will violate some existing patents. It's inevitable. But don't go looking to see if you do - you can't fix it, and knowing about the problem makes you liable for even more damages! The most you can hope for as a small software writer is that you'll be allowed to cross-license your invention, and in return for using your ideas, the big companies won't sue you into bankruptcy. Some game ideas should be protected - characters, innovative game hardware, and art resources. But imagine where the industry would be today if there were a patent on platform games, or software for positioning a camera in first-person perspective, or the challenge of collecting items for the purpose of advancing the plot! We have all built on the shoulders of giants, and patenting gameplay elements or software only hurts the industry as a whole, by restricting financial success to only those who already have it, and stifling innovation in newcomers and small development houses.
No. By patenting the things they come up with, innovation will be stifled. No longer will people be able to build upon previous ideas to create something new and cool. No longer will people be able to just experiment and play around with game design or tech, because they'll then have to get a lawyer in to analyze every tiny bit of code & game design in the game to find out what patents they infringe on so that they can get the licenses for them. Compare the amount of innovation that has occurred in the past 15 years of game development, and then compare that to the innovation in, say, the car industry, or home appliances. Your kettle is almost exactly the same as it was 15 years ago, as is your car. Just with newer materials and more curves. Meanwhile games (technology especially) have progressed in leaps and bounds, and the sharing & open nature fosters this. People build on top of everyone else's work, instead of being forced to reinvent the wheel, or pay money to be allowed to build off someone else's work. If the games industry embraces patents like these lawyers suggest, you can kiss any improvement in any aspect of the games industry goodbye.
-Tristan Williams, Ratbag Games
Patents are an antiquated system that hamper creative development instead of harboring it. The concept of patents works great in a world where every creator is a crook who can only form ideas by copying the competition. Patents fail for those creators who prefer to envision their own ideas, which in many cases may be very similar to ideas already created. It takes away their time, delegating them to task of researching cryptic patent documents to make sure their own idea is legal to use. If developers focus on fully tapping the potential of an idea for their game then competitors would have a harder time creating a better or equal system. Even if the copied game improves the original idea, you still win because you have something new to improve your own game with for the sequel and the creative process continues.
To quote the article: "... to reward inventors who come forward and share their inventions with the public by granting them a limited period of exclusivity in which they can exploit the fruits of their labor." The problem is that games are relatively short lived, thus patents offer practically unlimited period of protection to them. Also a part of designing games is to combine successful ideas. What would have happened if say Westwood would have patented the RTS-genre at the time of Dune II and decided not to license it to anyone? We would have never seen games like WarCraft and BattleZone, not to mention the countless other RTS games. Naturally as long as you can get patents for your games, it's good business to acquire them, it's just not the game making business.
-Jarno Rajala, University of Turku
No, for the same reasons I disagree with the concept of software patents in general. Patents should be for implementations of systems that actually have some mechanism that has a physical effect. Otherwise the trend of defensive patenting will roll into the gaming industry, further burdening the small independent developers. Patents were never originally intended to be used to protect the invention of logical concepts.
Absolutely not. Removing the ability to add new innovations to the work of others forces the entire industry into a slow grind that will be outstripped by other areas of the world where the patent frenzy in software has not yet been achieved. Games achieve a level of complexity beyond the ability of any law office to detail and discover every possible patent within it at reasonable cost. Attempting to do so bleeds cash for no net gain. "The only winners are the lawyers." Creators, sellers, and customers all lose out.
The way the U.S. deals with patents is absurd compared with Europe. What is often neglected in assigning patents to software is that they have to be innovative and that reasonably speaking, another person who specializes in the same field should not be able to have come to the same 'invention' without making a leap of logic. Almost none of the software patents have this and should never have been approved. If you look at the examples it's hard to imagine how these patents have been allowed, there is nothing revolutionary about them. On the subject in general, it is a popular belief among some of the most influential software engineers that patents hinder progress. Instead of many different parties working on a new concept, only one party has the rights to and may allow other parties to work on it. In the U.S. the patent system is unfortunately flawed, patents are assigned to techniques or algorithms that should never have been allowed, sometimes because they are already widely in use. Example: A system for determining if two operands point to different locations in memory, the system comprising: a compiler for receiving source code and generating executable code from the source code, the source code comprising an expression comprising an operator associated with a first operand and a second operand, the expression evaluating to true when the first operand and the second operand point to different memory locations. (IS NOT OPERATOR) This patent was filed in 2003! My point, because of the way patents work in the U.S., you unfortunately have to resort to patents, because otherwise they can be assigned to others, even when you were already working on, or even completed, a procedure or algorithm that the patents covers. Until they fix the system, you are forced to work with it.
Absolutely not. As an industry, we have always depended on a very open information flow, both for design and technical ideas. The only ones who could, in the short term, benefit from aggressively using patents would be the big publishers, as they would have cross-licensing agreements. The small developers would completely disappear, as they wouldn't have resources to license patents, thus ending the source of most innovation in videogames. In the long term, even the big publishers would be affected. If we worry now that our industry doesn't innovate and that every game is just a follow-up in an already established franchise, imagine what would happen if innovation itself was in the hands of a selected few. Think about it. Would Jak and Daxter ever be made if Nintendo had patented platformers? Where would AI be if the A* algorithm was the property of some big publisher? Think of all the puzzles, like Lumines, that would had never been made if someone had a patent on "Making similar shapes disappear when some goals such as 'a line full of them' are achieved". In the article is shown the typical absurd patent: United States Patent No. 6,604,008. I was getting "Bonus for artistic impression" in Carmaggedon a long time before this patent was filed. The article also says that life would have been different if Russell had patented the idea of videogames. Certainly, the videogame industry would have been a lot smaller if only those with the money to get a license could develop games. It's true, though, that Steve Russell deserves a lot more recognition than he usually gets.
-Marc Ordinas i Llopis, Tragnarion Studios
I understand the need to protect and nurture invention and creativity, but big business (big money), invention, individual rights and the law have not been happy bed-fellows recently.. However, if patents are allowed (and allowed to be upheld) for increasingly abstract and vague gaming concepts, then I fear all we'll be nurturing will be the inevitable rooms full of people paid simply to research and patent as many (vague, abstract) game concepts as they can (for their "major player" employer).
-Mike Roberts, Profero
The issue with patents in games is the same issue throughout the software industry - innovation. In the related article, patents were given to Sega for "a game method in which movable objects automatically move away from an approaching character." Characters that can detect that you're within X units of them and then move out of the way is hardly original or counter-intuitive. I can't see a lot of time and money spent to develop that concept. I have no problem with a software patent if it's an advanced rendering technique or something that actually involves some R&D, but stuff like this is just ridiculous. The fact that it can be used as a legal bludgeon against smaller developers even though it is insubstantial and easily disproved (although not cheap) severely favors the companies that can sue their competitor into the ground. I somehow don't think that's what patent law was envisioned to do.
-David Koontz, Happy Camper Studios
Software patents in general, and video game patents in particular, seem to me to be one of the worst ideas to come down the pipe in a while. Certainly there are arguments to be made for the short-term gain of the companies who file for patents, but the impact on the industry as a whole seems to me to far outweigh those temporary benefits. The games industry is technology and innovation dependent to be sure, but our innovations tend to be evolutionary rather than revolutionary (with several notable exceptions, of course). Couple that fact with the general sorts of bad behavior that we see out of companies who try to enforce overly vague patents by threatening every product under the sun, and the future begins to look a little grim. After all, where would the industry be if Id had patented the key concepts of a first person shooter? This may be a business, but it's an art too. Let's try not to forget that, eh?
-Habib Loew, DigiPen Institute of Technology
Hell no! It's a dishonest way to make money. Obvious concepts will be locked behind piles of lawyers. Not so the inventor can benefit, but so others can be blackmailed, er ... sued once they've committed to a product based on similar ideas. Want to let the user play a mini-game while loading the main program? Sorry, that's off limits, someone owns it (one of the PS2 Crash Bandicoot SKUs ran into this gotcha). Perhaps if the patent system was better managed it wouldn't be so bad.
Software patents are not working. They are starting to stifle innovation and will eventually make it impossible for small companies to get started. The USPTO is granting ludicrous patents, which should not be granted, and would not stand up to a proper examination in court.
-Gary Makin, Makin Software
Patenting software might be "legal" right now (due to current legislative failures in the area), but it is definitely not moral, ethical, nor economically sound, and it definitely wont do anything good for our industry. Educational literature and mathematical formulas were never supposed to be patentable, but apparently they are when you get corrupt legislators, encouraged by fat lawyers, to give it a new label. No software patent is in any way more valid than a patent on dog training books, which is illegal. Copyright is the only valid form of IP protection on software. Furthermore, by not releasing software source to the public, a software producing company is giving up any copyright, in favor of trade secret protection, since the code itself is never published in a human legible format. This means unless your code is Open Source with some kind of copyright license terms posted, you have no valid form of legal redress if another company happens to have similar code. Does anyone believe that EA, in eliminating competition in NFL game titles, has done the video game industry any good (other than EA)? Lack of competition, and fat cats able to sit on their laurels rather than innovate, and suing all innovative newcomers to death, has never been good for *any* industry. Good for the fat cats, for a short time, but no one else. Patents don't encourage innovation, they just encourage hiring more lawyers. They don't need any more of our money. They should be stopped.
I think it's ridiculous to be able to patent things like how points are awarded when driving with style in a game. Why not also patent a standard car race rule: win by being the first to get from start to finish? Or finding keys to open doors in first-person view, with a gun in front. It's just as ridiculous. I think that by allowing this, the game industry will cripple itself more and more as more patents are filed. The article mentions that if your game is made of a lot of old stuff; there might still be something new that you can patent. Sure, sounds good, but how about all the old stuff? What if all those ideas are already patented? Then you can't use that can you? In the end it will be impossible to create new games without paying license fees for every little part of the game. Isn't this like, for example, patenting a love story between two persons in a movie? Just about every movie is based on a variation of this basic idea. So, no, my answer is that I don't agree with the concept of patenting specific game concepts. It's completely ridiculous.
-Chanan Eli, PraetorSoft
Software patents in general are bad ideas, but patenting game concepts etc. is one of the worst ideas ever. Most of the great games we have today would not exist if patents had been granted prior to their design. The patent process in the US is so ludicrous that it would probably approve something like "Method of representing an automobile via three-dimensional rendering for the purpose of simulation" which would kill every driving game. Not only that, but it would hinder new startups even more than now. As soon as a company has an original new idea, EA will buy them. Thus we will have four game companies in the world: Sony, Microsoft, Nintendo and EA. Can't wait (sarcasm). The day that game companies start patenting is the day of the start of the downfall of the game industry. These seedy lawyers should stay away, and US citizens should really start protesting about its appalling patent system.
-Mike Clarke, Mike Clarke Music
NO! Would we have Halo if id had patented the first person game mechanic when they shipped Doom 2? Patented game concepts would bar innovative designers from improving on someone's first attempt at an innovative mechanic.
The patent system has evolved into one of protecting not the inventor's rights, but those of large corporations. The Crazy Taxi patent cited in the article is a perfect example. Certain Sega execs saw a "Wild Taxi" game/ride pitch by Disney and later developed their own Crazy Taxi franchise -- IMO, a blatant rip-off. Sega then had the balls to patent elements of this gameplay which would probably be obvious to anyone designing such a game. Whether or not the original designers deserved anything more for their work, they got nothing. And Sega and EA used this patent to battle over millions of dollars in royalties from two successful derivatives of the same work. Large corporations patenting everything under the sun is the equivalent of mutually assured destruction. In fact, I'd encourage any game developers listening to consider a SALT treaty on software patents and to reject any corporation that does not sign on. It may be the only way to stop this. A successful game rewards game developers. Please don't feed the lawyers.
-Avi Bar-Zeev, RealityPrime
The relatively slow rise of middleware ought to adequately demonstrate that when someone who considers themselves creative is faced with the choice of doing something themselves or licensing a superior alternative, most will opt to try it themselves. In the case of tools and engines, this can mean a substantial investment of effort. How much less likely are people to pay good money for mechanics? The only thing patenting a mechanic or concept will guarantee is that less games including that mechanic or concept will ever be made. One would hope that anyone including a mechanic or concept does so because they think it will make for a better game, and similarly one would hope that such a person wishes to play as more games of that kind than they are capable of producing themselves. Regardless, there is also a fairly popular maxim that competition improves quality, and patents of this sort can only ever reduce that effect. The "publisher effect" cannot be forgotten, of course. In a time where patenting mechanics becomes commonplace, how many of those patents will be the property of the person who had the idea in the first place? In this sense the patent becomes yet another tool that can be used to deny employees any hope of re-employment, and can only in the long run discourage people from having any good ideas at all (or at least admitting to them). It is difficult to see who benefits from these suggestions (other than those who obviously do not deserve to, for example the lawyers and publishers who are not the ones who have these patentable ideas in the first place) and easy to see who gets harmed. What would the industry look like now if every major game genre had been patented at its creation? The stifling of innovation that this would all but ensure is confirmed Chang and Dannenberg's article with the simple justification that everyone else will just do it first. Apparently, since no one can win, we must make sure everybody loses. Finally, the ramifications of widespread patenting would entirely shut down the modding community.
-Tim Fletcher, University of Edinburgh
Patenting as a general rule is a complete sham. It is veiled as a means to "protecting your innovation", but in reality it is a means of squelching competition and innovation simultaneously. I think this verse is very appropriate here, "and there is no new thing under the sun" (Ecclesiastes 1:9). Obviously, there are many new things coming about everyday, but new ideas and creations so often are dependent on building on existing ideas and creations. All that patenting is doing is increasing the difficulty of leveraging existing ideas to innovate and bring new ideas about. Sure there will be copycats that just use others' ideas and do not create anything new, but overall this will not help innovation, but hinder it instead. What happens once someone owns the patent to "digital characters using digital weapons to reduce the life value of other digital characters"? What happens once someone has patented "digital vehicles proceeding towards a goal with a time limit where said time limit is increased when the digital vehicle reaches a check point within an allowed time frame"? What happens when "digital characters rising off of a digital landsca