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Question of the Week Responses: Video Game Patents

Spurred by the <a href="http://www.gamasutra.com/features/20050531/dannenberg_01.shtml">controversial article regarding software patents</a> by Ross Dannenburg and Steve Chang that Gamasutra published last week, we present the answers to: "Do you agree with the concept of patenting specific video game concepts, either game design ideas or technical innovations?"

Quang Hong, Blogger

June 9, 2005

1h 35m Read


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.
-Ted Brown

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.
-Nathan Adams

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.
-Charles Boland

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 landscape then returning onto the digital landscape" has been patented?

It's a sad thing with those patents. To have enough money to acquire and defend patents is not possible for a young innovative startup company, while big companies can collect big portfolios of both technical and non-technical patents which you can't possibly investigate all (because of your limited resources as a small company). This results in a constant threat which is especially crucial for a small company when it needs investors. Patents distract from your real business (creating innovative games) and that's sad. This is also the main reason why I wouldn't want to work in the U.S.A. Here in Europe our patent rights are still reasonable. There are no patents for design (copyright and trademark can be applied) plus there are no patents for software at all [explicitly denied, copyright can be applied (which is inexpensive)].
-Samuel Berner

Short answer 'No.' Patenting concepts of ideas for intangible products (software) is only in the best interest of patent lawyers. For what's on the surface as bleeding edge - game dev as a discipline (as is with all software development) is highly derivative work. There is always 'prior art' to negate anyone suggesting they have a TRULY innovative design e.g. (The grandaddy of FPS DOOM may have been the first to USE some data structures for occlusion in a game environment but like so much of 'computer science' it's based so much on concepts that were written about in the 50's and 60's. ) Is your game really innovative? You needed how many OpenGL/DX calls, which are implemented with what OS and who's graphic card driver? Maybe they had something to do with it. In my experience if you think you have a new algorithm - a fantastic way of doing something; you're probably just not looking hard enough. Someone probably did a thesis on it long before you were born. It's a very ego deflating experience, but there have been a lot of very smart people working on data structures, AI, logic, and UIs for decades already. What the lawyers miss is that game entertainment has bloomed into a huge industry not in spite of 'a dearth of patents' but in part because of that fact. Commercial success in this industry is 50% good marketing, 10% 'innovation' and 40% solid project mgt. Again the only thing patents would do is slow development while legal wrestles if YOUR game feature looks like THEIR game feature.

I strongly and entirely disagree with the notion of patenting game design ideas. The art and the industry would be very badly served by this, as it would prevent implementation of refinements to game concepts. What game design innovation is completely radical? Much if not all of it is based on what has gone before. Any game that is entirely novel could not be said to be practical if it achieves results no one is familiar with, or practicable if its design can't borrow from experience. Game design is an art as well as a science, and no art is created in a vacuum. It's an appalling proposition to patent the core concepts, one which betrays a lack of knowledge of the creative process. That anyone would make it highlights the danger of allowing the conflation inherent in describing "intellectual property", which is really just a Frankenstein's monster of patents, trademarks, copyrights and other monopolies, each discrete and for their own purposes. Patents on ideas are plainly reckless and foolish. Other people have written extensively on technical innovation in software being very much dependent on the free exchange of ideas and prior art. Even in patenting mere algorithms has the state of the art been hurt, witness the great delay in bringing wide spread encryption to the world because of control of AES preventing anything similar from being marketed or even given away. It may be that patents reward innovation, but if they hurt industry and society, if they create monopolies where trade should flourish, then they must not be allowed.
-Nicholas Calton

Absolutely not. Software patents are destroying innovation and preventing small companies from even marketing software; don't bring this insanity over to gaming. Patents were intended to protect innovators and advance the state of the art, but look how the patent on real force feedback has "advanced" things... 100% of the "force feedback" devices we have now are simple vibrators, none of them are up to the level of arcade force feedback devices from the late 80's. Software patents have evolved into a method for large corporations to prevent competition from innovators, and for lawyers to rake in lots of money at the expense of people doing interesting and innovative work.
-Chris Herborth, QNX Software Systems

Patents are inappropriate for games. Consider the purpose of patents -- to encourage inventors to make their ideas public, furthering future innovation. In exchange for public disclosure, the inventor is rewarded with a temporary monopoly on his idea. However, in the games industry, information about new techniques tends to get around. Often intentionally through magazines or websites (like gamasutra.com). Sometimes unintentionally by the movement of employees between companies or when a programmer sees a technique in a game which he then applies to his current work. Does this stop developers from making new games and innovating? Of course not. Developers continue to make games at an incredible pace, even without patent protection. Fear of idea theft does not stop us from making new games. Instead of fostering innovation, patents become a "cash cow" for those who abuse the process (and for patent attorneys paid to file applications). It's interesting that the feature article "It's Just a Game, Right? Top Mythconceptions on Patent Protection of Video Games" considers the above argument to be "largely academic" and implies that software patents are here to stay unless the Constitution is amended. However, the authors must know that patent law *does* change *without* modifying the constitution. For example, it is strictly forbidden to patent mathematical formulas. Who's to say that we couldn't get game-software patents off the table if we work together as an industry devoted to more open trading of information? And there is also the issue of the absurdity of patents that are being issued. We don't have to look any farther than the article. A cited example is a patent on technology that makes characters run away from the player's car. Running away from cars! What innovation! How would technology advance without this patent being made public? One wonders how this got by "prior art" and "non-obvious" tests. Instead of focusing on patents, here is a better strategy for our industry: - Create your great new innovative game. - Copyright your game (the appropriate form of IP for games). - Publish it. Other developers will copy your ideas. But, so what? Think of it as advertising for your next product. - Start working on your sequel. - By the time you're done, you'll be publishing a second-generation game while the competitors are still trying to copy your first-generation product. This represents the opinion of John Giors and does not necessarily reflect any opinion of Pandemic Studios, LLC.
-John Giors, Pandemic Studios

Patents on video game concepts do more harm to the industry than good. Rather than encourage the sharing of ideas, the patent simply prevents any other companies from using those ideas. Furthermore, whoever awards these patents doesn't usually know enough about video games to be able to know the difference between a unique concept and something that is fairly obvious. As a result, developers are not able to use ideas because they can't afford to pay royalties to some other person who made no contribution to the project.

Patenting game design ideas and software is a bad idea - "bad" as in "morally wrong". This is true of software patents generally. The more such patents accumulate, the harder it will be to create any new idea that doesn't depend on one or more existing patents, and therefore require licensing. Large game companies with their own patent portfolios will be able to trade patent rights with the patent holder - probably another large company - or at worst pay the licensing fees. Indie developers won't be able to afford patents in the first place ($15K looks a lot different when your total budget is under $50K than when it's $15M!), and will be forced out of business by the fees. Ultimately, this is extremely bad for innovation - the exact opposite of what the original framers of the patent system intended. You DO need protection from predatory patenting by other parties, but you can get it by forcing innovations into the public domain as "prior art". (I.e. publish your innovative techniques, so that everyone can use them, before your competitor patents them and charges you to use your own idea. Disclaimer: this is not offered as official legal advice; I am not a lawyer!) Finally, an article on the advantages of expanded patents by patent lawyers should be recognized for what it really is: advertising. The authors are probably sincere, but they have a clear vested interest.
-George Rappolt, Hologic

In the end, they're like trade tariffs. This protectionism will only end up hurting all of us in the long run. The industry already has problems with skyrocketing production costs. Adding teams of lawyers to every side and having to get workarounds for basic solutions (I patented use of the analog stick for controlling head movement!) would stifle the industry, and kill off even more small, independent developers and self-publishers. We need to start thinking more like artists and film-makers rather than automobile producers.

Not just no, but HELL NO!!! 1) Because the Patent process is horribly broken and ripe for even more abuse. 2) Because most "innovations" DO NOT PASS EVEN THE MOST BASIC LITMUS THE PTO IS SUPPOSED TO BE USING TO FERRET OUT BAD PATENTS. When the Patent Plague comes home to roost in the last enclave of free thinking I care about, it's time to foment civil disobedience to the max against this mindless government-sponsored, evil stupidity.
-Shawn Stamps, Sylvan Entertainment Associates

No, I do not agree with this. To me this is the same as a videographer patenting the way that he/she holds a camera when shooting a scene, or some patenting a particular way of driving a car. If you patent a something like this you are claiming that since you "came up" with a way to do something in code, graphics etc, that any other use of this technique must have be derived from your way of doing it and not someone else having the same idea or a better one. This is like all software patents and can only hurt everyone in the long run. For instance PanIp, Amazon and EOLAS all claiming ways of using the internet. This is what Trademarks and Copyrights are for and even these have become a twisted version of their purpose.

I don't agree with the sentiment that ideas can be patented. Patenting ideas is a dead end and will eventually stifle everyone's ability to be creative and produce good quality titles. Imagine if every developer had to start paying license on game features that became de-facto standards (double jumps for platformers, cross-hairs in FPS etc.) On the other hand if you made a significant technological invention (i.e. a specific implementation of an idea) you could argue that you should be able to protect that implementation through patents. But again, I'm not too sure about that. Too many ways to exploit the system outside the scope of the concept of patents. One thing is for certain. Software patents are granted for too long a time. The speed with which software development happens quickly erases the novelty value which means a lot of copyright owners sit on useless IP and the patent no longer really helps them but simply hinders overall progress in the industry.
-Soeren Lund, Deadline Games

Absolutely not! Patents are a blight on the software industry. Having "everything under the sun" patented will bring innovation to a screeching halt. The article itself mentions that games build on existing concepts. How can you do that if all concepts require a license or lawsuits? Patents are obviously not need to foster innovation as, as was mention in the article there are currently a dearth of them. I challenge the game industry to rather then spend their time and energy acquiring patents that they instead focus on abolishing patents on software.

Absolutely not, this further widens the gap between the multi million dollar globals and the independent developers. Surely this will lead to SCO / Microsoft / Sun levels of suing and counter suing and just bring in a lot of business for the suits and other uncreative busybodies that this world could do without. I am sure the big guns will spend millions already protecting there investments why spend money on a patent when the whole patent system is basically broken? I can see the cost of development further increasing and stifling innovation (of which there is very little these days anyway) from fear of being dragged through court because your game features a **insert mundane everyday thing here**.
-Peter Beckwith, codeheed

No, it's insane because any game concepts that a publisher is willing to fund has already been done a thousand times before. This will just destroy innovation and the market completely... Well, it's already going downhill...
-Benjamin Schleimer, Midway Games West, Inc.

Not a Yes or No answer. But... determining when and if a technical innovation or a game design concept should be patentable should boil down to concise combinations of extremely finite specifics. A designer can take two or more previously unoriginal ideas and when they are put together in a unique situation they could represent a concept that is potentially patentable. I'm going to use one of my game concepts as an example. These are the raw unoriginal concepts: using animals as ammunition, using the destruction/relocation of natural objects such as trees to alter the landscape. Alone these ideas aren't very original or worthy of being patented. People have been using animals as ammunition since the middle ages (horses & cows were launched by trebuchets). Trees have been cut down to create bridges across rivers many times. However, when these concepts are combined together in a previously unimagined situation they represent an original idea that may represent a valid patent applicant. Imagine a game where the player(s) uses animals such as beavers, turtles, moles, etc. as ammunition that are launched from a cannon or catapult. Sample scenario: When the beavers land they instantly walk to the nearest tree whereupon they cut it down with their teeth. The tree then falls in the direction of the beaver either blocking a path, crushing an obstacle, or creating a bridge across a gap. Therefore, placement of where the beaver lands is crucial in determining how it will affect the landscape. Other creatures would be used similarly but with different results. Basically, the concept is a real-time creature terra-forming game. So taking previously unoriginal concepts and putting them into a unique context I believe represents something innovative enough to be worthy of patent status. However, a game that has the same game play as this would be quickly identified as a rip-off by most players. So in a way players can act as a safeguard against those who would steal other designer's concepts as the copying designer would hopefully lose customer loyalty and respect. For this reason patenting an idea like this may not be worth the time or cost to the designer who probably wouldn't face someone else, either an individual or developer, blatantly copying their concept. Additional design concepts that may be patentable include game mechanics such as the ability to independently control two weapons with each hand. Obviously this concept isn't original since it has been practiced in real warfare and seen in movies and on TV. However, the specific way that the developer chooses to implement this game play feature should be patentable. As far as technical innovations are concerned, I also believe that it's simply a matter of specifics and the arrangement of such specifics. A tool that allows a designer to interactively paint the height value to the height map for a piece of terrain isn't incredibly original or worthy of being patented, but the specific way in which the tool functions to meet this end should be potentially valid for patent status. In general, I believe that the game industry has to approach the patent issue with extreme caution, because while it may seem to offer protection to innovators, it may actually stifle industry growth if patents are too readily available. Patentable concepts/technologies should be of the most extreme specifics. I can't reiterate this enough! In a field with so many creative individuals/teams there are many game design and technical innovations that are thought of independently of outside influence that are arrived at by only slightly varying times. It would cripple those individuals or developers who spent months or years working toward a concept only to discover that someone else was able to patent the idea first even if that individual/team didn't conceive of the original concept first.
-Matt Bennier, SGS+ Architects (University of Advancing Computer Technology)

Let's take a look at what's at stake: profits and innovation. Profits because you'll have to pay MORE MONEY to develop. Instead of a copyright clearance, you'll have to do the whole shebang and do a patent search as well. Then come the royalties and licensing. You can pretty much kiss smaller companies good-bye. What will happen is that the larger publishers will start getting a patent portfolio, which will be used to club the smaller ones into submission. The phrase "anything under the sun that is made by man" is a bit too spot on with software patents. The Patent Office consists of mostly non-technical people who will, essentially, rubber-stamp anything that comes across their desk. Did you know that auto complete, the act of having an email address or other information filled out as you type it, is patented? Many things get patented every day in the software world, stupid things that have been around for years, which are approved until taken to court and thrown out. Like innocent until proven guilty, a patent is valid until proven false. This means that having to "... educate their engineers, on how to recognize potentially patentable innovations in their games..." will be vital: they'll have to make sure they spot anything that can be patented during the design process not for the company they work for but so they have a list of things to check, or risk losing millions of dollars as the game is kept from being released due to patent violations. Myth #5 isn't really a myth, nor is it an "academic" argument. Their entire "debunking" of the myth is a three-step exercise in logical fallacy: 1) They create a straw man: "A classic argument among those who feel that the entire patent system should be abolished." (One can criticize the system and say that it stifles innovation without "abolishing" it.) 2) Argumentum ad verecundiam (appeal to authority): "In drafting the Constitution, our founding fathers recognized that the best way to promote progress in the “useful arts” was 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." (There were heated debates about copyright and patent issues during the drafting of the Constitution, and it can safely be assumed that the Founding Fathers were not prescient. Therefore, although we can debate what it meant for them at the time, the times have changed, and the laws, processes, and ideas must change with the times.) 3) Argumentum ad Metum (appeal to fear): Paraphrase - Guy who patented Pong, good. Guy who didn't patent Spacewar, screwed over in the annals of history. Which do you want to be? If someone other than a lawyer trying to drum up business can explain how excluding more people from game development (and making every coder/designer in the industry sweat over every detail) can help innovation, I'm all for it.

This will force the industry to innovate. If game companies start patenting their game engine techniques that way no one can build any more First Person Shooters and no more Sports Games and no more Sim games and no more RTS games and no more RPG games and no more MMORPGs.

Since comparisons to the movie industry are rampant, I find this particularly relevant: http://www.ffii.se/dokument/filmpatent_eng.html

Look at literature. What would have happened to Science Fiction if Asimov had patented the word "robot", Verne had patented "stories about time travel", or Heinlein had patented "space opera"? What would have happened to mysteries if Christi had patented the "whodunit"? What would have happened to romances if Shakespeare had patented "boy meets girl"? Video games are a lot like literature, with the main difference that they are much younger. To effectively destroy the game industry, patenting game designs is the way to go. Let EA have "sport games", BioWare "CRPGs", Westwood "RTS games", and id "FPS" games, and we have a choice between about a dozen new games every year, instead of the thousands we have now. It would, however, be a great boon for the European game industry, which is quite small right now, but would grow to huge proportions if game developers can no longer do their job in the US. Way to go. And what about technical innovations? It depends on what is meant by technical. If it is about a new controller, fine. If it is about new software -- well, in the US that is already patentable, and it already has a chilling effect on the software industry. It is better to turn that back, than have game developers jump on the patenting bandwagon.

In the history of the game industry, copying successful ideas and concepts has always been the norm. The way hit games give birth to new genres is one aspect of this. The copying has not resulted in any lack of innovation or investment, on the contrary. The first-mover advantage associated with bringing out a novel game makes sure that there is always an incentive to be creative. The biggest threat to innovation in the game industry is the Hollywood effect: as budgets grow, publishers are less willing to take risks by funding untested ideas and concepts. By making budgets even bigger patents simply exacerbate this problem. As a small independent developer, I obviously also have the problem of not having the means to seek patents or protect myself from them. Patents would tilt the playing field to favor big publishers with huge patent portfolios; hardly a change that promotes innovation.

How patenting game design ideas could possibly be of real benefit is truly beyond me. Game design is technical in many respects, but it is essentially a creative work; patenting game design elements would be like patenting plot elements in film. Setting any kind of reasonable limit on what constituted a "patentable" game mechanic would be nearly impossible, and if the practice were popular you could largely forget about searches for prior art by already painfully over-stressed patent offices. Such a system, in this context, would lend itself almost solely to those who would abuse it.

Absolutely not. Unlike copyrights (that are absolutely appropriate to software), software patents for video games serve no real purpose other than to enrich a bunch of lawyers (such as the two who wrote the article). Space forbears listing every error and oversight in the article, but here are a few: "Myth #1. Video games are just computer programs, and you can't patent those, right?" Not a myth, truth in Europe, and by all present indications it's going to stay that way. Further, the current U.S. software patents debacle illustrates just how broken the idea of "software patents" is -- and it's in the process of being fixed. See, for example, http://www.ftc.gov/opa/2003/10/cpreport.htm . If you're patenting something, it'd better be for something truly unique and unobvious. "Myth 2. Ok, even if you can patent computer programs, my video game is based on old stuff, and is nothing new." Not a myth -- it's called prior art. Consider http://www.eff.org/patent "Myth 3. The patent process is slow, and the industry is fast – by the time the patent issues, it will be worthless." True. Even the 18-month provisional rights period is well outside the window for video game development. "Myth 4. I'd never sue someone for patent infringement anyway - the courts are too slow and lawyers are too expensive. You don't have to sue someone to benefit from your patent. Being able to say “this game is protected by a U.S. patent” can do wonders for marketing, attracting investors and financing, and can give your company negotiating credibility, leverage and strength in the marketplace." So the real value from patents is as a marketing tool? How about just making a great game. Square, Rare, and Bungie didn't become successful because of patents. How does a patent _really_ benefit the next Zelda? Bottom line, video games are interactive entertainment, and patenting them is like trying to patent aspects of movies. Let's say I direct a film and (with my D.P.) we come up with a new camera move. Using the authors' logic, we should patent that camera move. And even if the law allows for it right now, if that isn't one of the stupidest, most egregious abuses of a legal system designed to protect and promote innovation then I don't know what is. That's just a few points.
-Beryl Lusen, NSDG, Inc.

No, but I can see why a juicy $30bn/year industry, virginal and inexperienced in the ways of IP litigation appeals to Messrs Dannenberg and Chang. The essence of their pitch is, "we can't promise to make the pie any bigger, but you may be able to score a bigger piece of it, for a price. And if you don't feel like paying for our services, then your competitor may." Now that's a heady blend of greed, fear and laziness that has divided, conquered and finally crippled many fields of human excellence. Let's hope that the smart minds of the video games industry have the courage to show these racketeers the door and continue making the pie bigger for all of us - producers and consumers - like they've been doing for the last 30 years.
-Dan Lewis

People who don't write software have no understanding of the nature of software how it is developed what it is like to write it and the same is true whether in video games or other types of software. There is hardly anything new at all in software. But had the developers of the first spreadsheet, word processor etc been able to patent those, do you think companies like Microsoft would have been able to come along later with better versions? Would the internet be as it is now if mail transport agents, web browsers, etc were all patented concepts. Of course not. The best analogy is writing novels. Do you agree with the concept of patenting certain types of plots, phrase structures, words or story ideas? Good Lord No. It would be unthinkable. The only people who want patents on software are those who seek to make money by taxing others. If you want to pay a tax on all of the various mechanics involved in developing a game, not just the ideas, but various code mechanisms etc, well support the idea. Thankfully in Europe we appear to be avoiding the folly that has best the US patent system. The pressure to have software patents there comes not surprisingly from the large patent holders, who with one or two exceptions are not European. But if games were patentable I suspect that most game development would ship offshore very rapidly (what's left in the US that is). Patents on game ideas - well that should get rid of all the indie developers, limit innovation... just to make a few dollars for some lawyers. What a neat idea! (Not!)
-David Bolton

I generally disprove of the patent system used to lock others out of competition. This is no exception. An argument based on what others in the software industry, as shown in the feature story, or what those in the game industry are sure to do, is not a reason to get everyone on board. The true issue is that patents are being issues too loosely, for too long of a period of time, and for too obscure of an idea. The patent system is also a method of forcing the small companies out of the business. We'll soon see situations where any game company without either a large budget, great attorneys, or a large patent portfolio, will be forced out due to the threat of extortion (the common practice of informing a company to license a technology or face them in court--where the license will generally be cheaper than attorney fees, even if you are in the right). Do I feel that game companies NEED to start filing patents? You bet--if the system isn't going to change, they will be forced to file for any and every patent they can. It will be just like the rest of the software industry--a race to be the first to the patent office. Just as Microsoft, IBM, and Sun Microsystems have been able to, for the most part, avoid any major patent issues simply because of their own extensive portfolio, we will see the game industry fall in line as well. I will not blame them for having to do this, but I will continue to hope for sweeping patent reform in this country.

Absolutely not. Most ideas are products of their cultural environment. Whenever somebody presents something novel, there are hordes of others who were just half a step behind. Patents unjustly hinder people from developing their own visions to the finalized products, and they stifle innovation by not letting people build on each other's work.
-Daniel Bernhoff, Aescapia

No. Not as long as the current US patent system remains as broken as it is. The fundamental reason for patents doesn't apply to the game development world. Patents were put in place to encourage the sharing of information to allow for further advances. As is obvious to anyone with even a passing familiarity with the game world, we already share technical information freely -- it is the engine that drives advancement in gaming. It is also an indication that the basic ideal of the patent system is sound; the current problems are an implementation issue having to do with poor review process, a one-size-fits-all patent duration and the application of patents to inappropriate areas of technology. And as for "game design ideas" being patented ... not just no -- *HELL* NO! That idea is just absurd ... as absurd as patenting the surprise ending, or the plot reversal, or rolling of dice to determine an outcome, or any other obvious or fundamental idea.
-Greg Jandl, QLogic Corporation

No, I personally believe that the only thing that should be patentable involving game design is the specific code itself, and the hardware designed to run it. Algorithms, Ideas, and concepts should not be patentable, for what is an Idea without an implementation.

No. There's more to making games than just cutting edge technology. Gameplay, having a community and other factors all play a part. Even if somebody else takes and uses one of your ideas in their game, you got there first. You've already sold your game and have already some fans. But I think the best reason not to take out patents is that it will stifle creativity. For example, if I have a great idea for a game but can't make it because I can't license the patent then that's a loss of a potentially great game. And what about open source games? There are so many indie and amateur enthusiasts making and releasing games open source - will they be able to continue if there's the constant threat of lawsuits? And tell me, if my game studio has so many patents on many aspects of current game technology, would we still be as innovative as before? No, lets just sit there and keep collecting licensing revenue from everyone else who's actually doing the hard work innovating... less people can afford to make games, less people making games, less creativity, less ideas, technology growth might slow, game fans may lose out, but that's ok because at least I'm a bit richer now...nice. And the lawyers encouraging this... obviously they speak from a neutral perspective... they don't stand to benefit from this at all!

No, These sharks are attempting to line their pockets at the expense of the game industry's ability to innovate and close its' doors to 3rd party developers without the legal muscle to patent their own innovations. This is the exact thinking that helped to make Microsoft the monopoly it is. If EA decides to take a page from that book, they will end up being the only game in town. They will be able to file frivolous patents that they may not even be entitled to. Smaller companies will either get sued or try to file suite against EA. The result will be the smaller company get killed by legal fees and most likely settle out of court. Not to say that EA would do this. I hope that it won't, but the NFL exclusive deal makes me think otherwise. This Article, although written with poor language and a pinch of sarcasm, has many good points. Pay particular attention to #15. http://www.pointlesswasteoftime.com/games/manifesto.html We've been warned.
-DJ Kehoe, ImpQuest Games

No. Software patents make it too hard for me to write software. The idea of protecting MY stuff is good. But it means also that all other People can protect THEIR stuff also. So even if I write a small game I would violate patents like "Using the right mouseclick to do an indirect control for a creature" (Means for example Dungeon Keeper. Right Click to beat your creatures so they work harder". It means I can't write software I want, because I have to search for patents. It means I can't evolve my game, because everything is patented. I have to find complete new ways of controlling my creatures for every new type of game. And the point that a patent tells an investor "That's a safe investment" is in reality not working. Because it tells the investor also "Hey he has violated patents. He may be sued for millions". I like patents for mechanical thinks. Or patents for really important work. But the reality shows also that you can get a patent for double-click (Microsoft) a patent for one click - buy (Amazon) and for internet software updates (Adobe) or for funny things like the tool windows in Photoshop. And like said I don't want to pay millions of dollars because I write a real time strategy game and the patent for it has electronic arts because they buy it with Westwood.
-Thomas Ganshorn

Patenting in video games is an excessive measure where Copyright law provides adequate protection for innovation. Software patents are counter productive because in many cases it is the small development houses, who cannot afford the patenting costs, that are willing to take risks for innovative ideas. Large corporations, because of their massive budgets, are also able to buy software patents and accumulate massive patent libraries while the small developer doesn't have those opportunities. Also, there is no cheap and easy way for a developer to find out whether the concept that they want to use has already been patented or is covered by some other patent under some floury, near incomprehensible, wording. Developers that reinvent the wheel shouldn't be penalized because someone else already invented it under a different name. Especially when no one's heard of it because the company's product failed in the market place and the five or so years later they come out of the woodwork to rape the profits of other companies. In short software patents in general only serve to benefit wealthy companies while hurting smaller ones in the long run. Where would we be if simple algorithms like "Quicksort" or software architecture patterns like "Abstract Factory" had been patented as inventions? Copyright provides sufficient legal protection at the same level for all software developers regardless of their financial standing and copyright infringement is far less abstract than patent infringement.

This will kill the game industry for independent developers. Software patents aren't about protecting rights; they're about bludgeoning smaller companies with the threat of a lawsuit. "When a non-programmer hears about Michael [Abrash]'s articles or the source code I have released, I usually get a stunned "WTF would you do that for???" look. They don't get it. Programming is not a zero-sum game. Teaching something to a fellow programmer doesn't take it away from you. I'm happy to share what I can, because I'm in it for the love of programming." -- John Carmack, id Software (from Michael Abrash's _Graphics Programming Black Book, Special Edition_)
-Andy McFadden, faddenSoft

No, I believe our current patent system is flawed. With the rate at which technology changes patents seem to slow down progress. The expense of them seems to limit them to only the big players and become tools to extract money from the little guys stifling innovation. If the patent office had people that could actually tell what was non obvious so it could grant patents for things that were innovative, made them cheaper to obtain and only last 2-4 years (some reasonable amount for the life time of software or a game) maybe it could be considered but with the current system there seems to be too much chance for abuse. Imagine if ID had patented the first person shooter or Nintendo had patented the 3d platformer most of the games on the market would no longer exist. I would personally like to see software patents as we know them go away and am glad for now they aren't stifling the creation of video games.

Patenting, like copyright, is designed to offer limited rights of protection to the patent holder to promote innovation and industry, by letting the patent holder obtain some reward for their work. In practice, that means protecting Intellectual Property (IP) so businesses might exploit it, as publishers used to with copyright. Notice, limited rights, to make some money, not complete rights to make all money. It is possible to argue that broad, or vague, concepts in video games should be patentable, but along the same lines you could ultimately argue that if somebody sees an object, or merely stands in the presence of it, they should pay the patent/copyright holder a fee, even of unlimited amount. This would be unreasonable, unjust and absurd, but there are instances, and people, like that doted though business history. The real question is, “how far should we go with this protection?” Copyright used to be held by publishes, not authors, after some time the writers themselves obtained rights to copyright with automatic free license (though this may not be the case in every country). In comparison, patenting law is stuck in a dark age, where businesses, and the wealthy, are the only ones that can effectively afford to research, take out, maintain, enforce and defend patents. When too many things come under the umbrella of patenting, the number of hidden dangers, like avoiding infringing somebody else's patents, and the cost of licensing other patents, and litigation, become too much for the private innovator to afford. This puts most of the control of innovation in the hands of companies that can afford the costs, and forces innovators to take their innovation, and much of the profit, to these companies. The extension of certain patent laws, and not the refinement of others, is not so much about protecting innovators but giving businesses more control, for longer periods. You will notice that business consistently argues for more rights, not so much to protect innovators, but to get more money for themselves. So I say "NO", concepts in video games should not be patentable, particularly those that imitate existing real world concepts/processes/objects/methods/movements, but "yes" on the technical side of things. The video-game industry is more akin to a fashion industry, games come and go quickly and are remixed fairly regularly. So it needs to change rapidly and semi-regularly, unless you want the rate of innovation to crawl along at a snails pace, and be stuck with very few games on each concept for 20 years. So we could argue that if a game is, in essence, just merely an imitation of another, it should not be allowed. But if a game is a substantial improvement on an existing game it should. We see that both of these things could be covered under existing notions of copyright. On the technical side of things, are we really interested in nit picking? Under copyright, yes whole programs should be protected, even whole subroutines, but it is inevitable that certain fragments of code are natural to the writing of code, as sentences are to literary writing, where the same sentence maybe used by many authors in different writings. So what should be patented, substantial, new, novel, unobvious, unique, innovative etc specific methods/processes (not of the code sequence itself) identifiable as whole self contained units, but not as far as concepts, or game play/elements/movement concepts. The process of software innovation is so close to the process of literary innovation, but at the same time even closer to writing an instruction manual, that we should rarely and reluctantly abandon it. The broader concepts themselves are our pallet with which we make a living. Another problem area is employment law. Traditionally, in employment law, what you develop in, or out of, company time, is automatically owned by the company, don't matter how privately it was developed, or how different from your normal work or the business's field. Business could even demand that you not work a second job. This comes from the slavery based notion of Serfdom, where the local master/Lord owns rights to his serf's life 24 hours a day. For example, if a programmer worked on his own game, or patentable technologies, in the hope of getting ahead and starting his own business, he could well find himself in court with his employer demanding rights to his private work (and the same being a student at university). Luckily, things have been actively changing for decades in this area but it still needs to be kept in mind and the law re-written on the basis of the employee being their own separate free entity on the same level as the business. Another area where this has cropped up is in contract work. In contact work the business/individual that contracts you only got rights specified under the contract/law, and unless specified, all intellectual rights remained with the person contracted. The one contacted was considered a free agent (not serf) of equal standing, contracted to do a specific job, and the one doing the contacting was only entitled to rights to that specific job. I do not fully agree with this, I do believe a business should have Intellectual property rights to any end product developed under contract (unless specified differently) even possibly any new IP developed in house or within the product, under the contract. I have read reports, in the last couple of decades, of court decisions treating contracted individual's rights as if they were regular employees. In the cases I remember, it was about work engineers did at home in their own time. Once again it is not so much about protecting workers and innovators, but about giving businesses more rights over them and their profit. This is something all here need to address as well. It is about removing opportunity for advancement and profit from individuals to larger businesses, and about giving more stability to those larger businesses. The law does need to be rebalanced. By the way, most of the description of the examples given under Myth 1 does not seem new or non obvious, and therefore should not be patentable (meaning it should never, have ever, been issued in the fist place). This leads us to two points. One you may get a patent on a variation to an existing technique (which I guess most of the examples did). The other point is that it seems too easy to slip one by the patent office (somebody here recently patented the wheel, not new, not unique). It is not adequately regulated, and once somebody has an invalidate patent they can cause sheer havoc exercising it on everybody, as it can be a very costly and time consuming process to get an invalid patent overturned. Examples of things that are strictly unpatentable under the law that have been patented have been rife over the years, and some patent offices are too ready just to give up and let the flood gates open. The cost of patenting to industry is severe; it does keep small players down and generates much revenue, for lawyers. I suggest finding a good patent lawyer (being sure to avoid any that may like getting away with things they should not) to write a follow-up from their point of view. In the end, under law, usually only a patent lawyer (not just any lawyer) is legally allowed to give advice on patenting. Again, I would advice everybody to approach this like the plague, patent law needs to be rebalanced, severely streamlined and cut back. It serves its own masters, not most of the readers here. Myth 2, "I am going to make money on patenting every little new bit and piece of a game". In an industry where a number of people can make little money, or loose money, on a game, throwing money at non killer features might be just more money down the drain. So unless you have the killer game, or the killer feature, maybe you should think about not doing it. A patent only covers so many claims, so you may need more than one. Also what people don't consider is the cost of patenting around the world and recurring fees (not to mention the staggering costs of taking somebody to court to enforce a patent). A patent only does the country/group of countries it is taken out in, so a separate patent has to be taken out in each country/group. In the video games industry we are very lucky in this respect; most consoles get sold in few countries, so most of the advantage can be gained by taking patents out in the key markets. Still don't expect it to work out anywhere near as cheap as a singular US patent. The other problem is the extra cost of having to pay out licensing /settlements on patents out there on trivial bits and pieces, and eventually a flood of them. Once again, one more for the lawyers, because don't think many other people are going to make much money doing this with these sort of "dross" game features. So the best bet is, not to depend on what I say (it is out of date, novice, hear say) or most articles, but to get good accurate advice, is go and see a patent lawyer and ask them about these things. Disclaimer Note: All my comments are from a novice's point of view and should be depended on, but verified with the relevant legal counsel.
-Wayne Morellini

Yeah, this is a real boon for gamers of all types! It's not enough that we have generic sequels and bland film / TV knock offs, but lawyers want us to put up with companies patenting video game concepts. I can just imagine it... EA patents pressing the circle button as throttle in a racing game, so Ubisoft has to patent pressing the triangle button, and so on. Soon enough you'll have to press all buttons simultaneously while only facing west between the hours of 4:04am and 6:18am EST just to be able to accelerate in a racing game! Of course, game designers, game publishers and game players will suffer from this kind of thinking, and the only people this will benefit in the end are the lawyers.
-Julian Cram, Ratbag Games / Xboxworld.com.au, inthemix.com.au & dB Magazine

Very against patents. Another developer a thousand miles away has the same obvious idea as me a few months earlier and I get sued. Patents aren't supposed to apply to obvious ideas of course. But since when was obviousness objective?

In general, while videogame patents may enjoy a brief burst of popularity due to articles like this one, in the long term they won't prove to be terribly popular for one simple reason: the videogame industry is an incestuous beast. Consider: upon completion of the development of Medal of Honor: Allied Assault, a large portion of the development team was promptly laid off. Most of that portion reformed into a new company called Infinity Ward which turned around and created Call of Duty - a game superior to Medal of Honor in nearly every way. This would not have been possible in a situation where videogame patents existed. This basic principle can be extended to the industry as a whole. So many different people and franchises are bought, sold, recycled - your employee two projects back may be your employer tomorrow. Patenting basic gameplay concepts would be shooting yourself and your company in the foot. There may be a brief burst of popularity, but in general I don't see this becoming a mainstay of the industry.
-Justin Sonnekalb

Terrible idea, I've thought about this in the past and the answer is pretty logical. Whoever does the idea first usually gets all the money and credit for it anyway, if they patent it, then that's the end of the story. However, even with innovative ideas people have been able to improve on them, or branch off of them to make them better. Some games have come up with concepts that have been much better executed by other games (RE4, not a terribly original game in its gameplay, but executed so finely it's considered one of the best action games ever). This, in a sense, seems like the most democratic thing to do. Whoever does it best gets the credit and the prize. Additionally this doesn't make sense as it's merely a device of gameplay, not even a hard gameplay concept. You'll find that the idea M$ is trying to patent is in so many different games, games that you'd never even think to mistake for each other, much less their genre. I don't think this will ever hold any water in courts, it's just plain absurd. You might as well try to patent guitar chords.
-Dan Parker, ACCD

Disagree. Computers work a specific way...someone being able to patent a method for doing something might be the only way to actually do it. Someone couldn't take that idea/concept, change how they want it to work, and implement it...computers work with 0's and 1's. Period. Hardware? Sure! Concepts? No way.
-Paul L. Ming, Ming Designs

No, game design should be carried out in order to come under copyright protection. Ideas are cheap, anyone can think up a hundred or more in a day, but executing those ideas is another matter. In order to patent video game concepts they should have to be distinctively artistic and original, however, I believe they too are better protected under copyright. What if Westwood patented the RTS? What if id software patented the 3D shooter? It'd be a very sad world today... Patents hinder software innovation. It's comparable to writing books. Today an author gets protection under copyright, but what if the actual process of writing a book was patented? Or the book as a medium was patented? It'd be crazy...

Absolutely not. The gaming industry is not technology dependent, it is content-dependent. It falls in line with entertainment, and can be protected sufficiently by copyrights. I buy games for content, not technology. If game design/interfaces/processes/gameplay/etc. were patented on a regular basis, there would be too few games out there, and worse, low quality "innovative" games of a specific genre that could not be superseded by a superior game using the same gameplay concepts. Imagine if doom patented FPS gaming. Imagine if Westwood patented RTSes. One thing is for certain, there would be far fewer games out there that were FPS or RTS, and the chances of great RTS games like TA or WC3 appearing would be drastically reduced. Patents will ultimately destroy the gaming industry by putting more value on the least important aspect of games, the technology. Lawyers don't belong here. They should leave.

No. Software Patents benefit nobody save patent lawyers in the long term. They damage independent developers and smaller companies who can't pay for a legal department and patents, create artificial limitations on what a game can do and add taxation on game creation for nobody's benefit. Larger corporation like EA would benefit from a competitive advantage in the short term, given their ability to build larger patent portfolios and maintain larger legal departments, and force smaller developers to share their patent portfolios. But in the larger term, they would suffer from reduced innovation, the threat of patent holdings whose only business is suing other companies, and the inefficiencies of having to pay lawyers only to stay in the business. You can find better arguments on eff.org, fsf.org, ffii.org, or nosoftwarepatents.org
-Sergio Silvio Herrera Gea, Dräger Medical Hispania S.A.

I'm a software engineer by profession and I object whole heartedly to patenting 'concepts' Just look at what mess AVG's U.S. Patent No. 4,734,690, about spherical panning is creating. Can you imagine the state of massively online role-playing games today if some of the earliest MMO companies patented the 'concept' of a graphical massively multiplayer online roll playing game as a 'valid and unique extension of' existing MUDs and MUCKs? If someone wants to patent their IMPLEMENTATION of a 3d engine, or their implementation of a communication protocol, that is fine. Unfortunately the world of IP patent law is so vague and nebulous right now that patents are being granted for ideas that are then being used to stifle the natural creative process of developers.
-Justin Mercier, EMC

No. The game industry wouldn't be anywhere near where it is today without improvement upon earlier concepts. Imagine what would happen if someone had copywrited "playing a game with other human players over a computer network" and every multiplayer venture had to license the idea from them to create a game. Think of how many great games have been made DIRECTLY on the concepts of other games. Patents don't give a competitive edge, they rip it away.
-Charlie Isaacson

I took particular exception to "Myth 5" about the spirit of innovation. Contrary to the title of the piece, nothing is done to debunk this myth. Instead, his argumentation boils down to 'sorry guys you have to live with patents'. Contrary to his opinion, I would say that the video games industry is far more innovative now than other, patent-encumbered branches of software development. The moral of the story about Baer is simple for me too, but completely different. To me the story says, 'for the people with access to resources and lawyers, patents make it convenient to steamroll over other people's bright inventions'. No, I don't agree with the concept of patenting specific video game concepts, neither ideas, game design nor technical innovations.

If it is accepted by the USTPO it should be ok. Obviously, I shouldn't be able to make a Mario, Pac-Man, or Star Wars game without paying royalties. But no company should have the exclusive right to make 3D games or FPS, for example. Here are some definitions from uspto.gov: What Is a Patent? A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available. The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO. There are three types of patents: 1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof; 2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and 3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. What Is a Trademark or Servicemark? A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO. The registration procedure for trademarks and general information concerning trademarks is described on a separate page entitled “Basic Facts about Trademarks” (http://www.uspto.gov/web/offices/tac/doc/basic/). What Is a Copyright? Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress. What Can Be Patented: the patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained. In the language of the statute, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. The word “process” is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term “machine” used in the statute needs no explanation. The term “manufacture” refers to articles that are made, and includes all manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products. The Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon 42 U.S.C. 2181 (a). The patent law specifies that the subject matter must be “useful.” The term “useful” in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent. Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter. A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required. Novelty And Non-Obviousness, Conditions For Obtaining A Patent In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if: “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent,” or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . . .” If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost. The inventor must file on the date of public use or disclosure, however, in order to preserve patent rights in many foreign countries. Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be non-obvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, is ordinarily not patentable.
-Luis Feliu, Exelon

No, software patents are the equivalent of patenting a process or mathematical formula, thus they shouldn't be patentable in the first place. Furthermore the introduction of patents into the vide gaming industry would inevitably be bad for the industry as a whole, and in particular would likely end up as a monopoly force that allowed a small group of early entrants to construct barriers to competition. In the end the people playing video games would lose. There a few patents that already exist that are not inventive (displaying a game during a load screen, 360 spherical camera rotation) that are already harming the video game industry.
-Tyler Bannister, Virtual Learning Center

Patenting game concepts would kill the whole industry. Not only for the big companies which the current article has only taking into consideration but for the indie developers who would be sued by larger businesses to stifle the competition. Not only this, but the mod scene too would be sued whenever they violated a patent. Not only would modders have to worry about not violating copyright they would too have to worry about patented game techniques. Also your patents would mean nothing in Europe so the whole idea is pointless unless its world wide. It never will be because European leaders won't vote for it; they've already rejected the idea of software patents twice I believe. What about mobile games? At the moment there is only a limited way of doing things so patenting those concepts would just lead to fewer games made. Also note that it's patenting specific video game "concepts". So you could patent a concept and never have to actually MAKE a game to get that patent. Then when someone comes along to make that concept never hearing of your company you can sue them. Think it doesn't happen? Well it does already in other industries. Sure you can get a patent to exploit your labor, but what happens when your patents exploit others labor?
-Andrew Fenn

"You might want to make that argument to your representative in Congress, because unless the Constitution is amended to do away with patents, they're here to stay." Not so. The only part of the US Constitution that says anything about copyrights, trademarks, or patents is Article I, Section 8, which lists "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" along with a bunch of other congressional powers. The Constitution does not mandate patents, only that congress can put such a system in place if they feel like it. It doesn't even specify a patent system specifically, and it's simply listed with a bunch of other stuff congress can do if they feel like it. Patents are already a disaster in the software industry at large, due to patenting of quite obvious inventions, and because the standard time for patent expiration is far too long for the software industry. Let's not start applying them to games, mmm 'kay?
-Timm Murray

We should be trying to make games better, not worse! Patenting every aspect of the game and hiring lawyers to defend against suits can't possibly improve the quality of the game. Let's keep patents out of our games and allow everyone to reuse and refine game elements.
-Dominic Jonak, CMU

Absolutely not. Videogame publishers are exactly what they call themselves. Publishers. Videogames should be awarded the same copyright protection any movie or song would get, but patents on software is the most ludicrous, abusive, and destructive, force seen by any one industry. Can you imagine if you applied this same logic to movies? Some Joe runs out and gets a patent on "Boy meets Girl", "Aliens land on Earth", "Sun explodes earth plunges into ice age", "Man travels through space", etc... How does a videogame NOT fall under publishing? You write music, you write books, you write movies, you write games. If you "program" a game, then you can "program" a song. Arguing the semantics of a single word will never justify this outrage. And need I even point out that while a guy like me could not possibly afford to get more than one patent if any at all, what's to stop EA, MSFT, Activision, or any other billion dollar company from hiring a fleet of programmers to do nothing but patent everything under the sun they can think of? The videogame industry will eventually find that nobody can make a game because licensing all the basic stuff, like score, sound in a game, humanoids, guns, and everything else would cost 300-400 million to start and then you could still not be sure you weren't about to get sued by 600 other patent holders you didn't even know existed who were camped out waiting for the money to get there. It's bullshit. Nothing but. This has to be stopped. Copyrights are plenty fair to protect game makers. Patents are sheer stupidity. Or more to the point, it's how the fat cat's in Washington make sure that you and I stay broke and MSFT and EA stay on time with the campaign donations. End it now, or prepare for more chaos than you can possibly imagine. You think kids are violent when they play games? Wait till you start telling them games will no longer be made due to all possible gaming ideas being currently patented and nobody has enough to make just one game. Sound crazy to you? Yeah, think again. See you in another 10 years when I'll be happy to say "Told you so".
-Kenneth Harvey

I have to say I disagree with patenting video game concepts: it's a game of Russian roulette. While as the article stated, patents have legitimate uses in protecting your creative works and encouraging innovation, all it takes is a handful of shortsighted patents and accompanying lawsuits to effectively close the doors on the game industry to innovation. Look at what's going on today: A choice list of giants are being sued over a 1988 patent for "method and apparatus for spherical panning" that threatens to expand to impact more and more companies that use 3D engines, A company that patented the concept of spinning a misshapen weight with an electric motor is threatening to take the PS2 off the market. Making matters worse, you don't actually have to create the technology to patent it; just get it through the (insert nation here) patent office. It may never hold up in court, but how many startups can afford to go take a charlatan to court- especially a talented one who makes his living off of patenting things he never created? Protecting your work is one thing, but the legal limit on what you can patent extends far beyond what is ethical and reasonable. Then again, if we only did what was ethical and reasonable, we wouldn't need patents or copyright laws.
-Shawn Covington, Hunter's Claws Productions, LLC

I can see this being useful. After all the reason Nintendo will not display many of its wares is because they believe that its competitors will steal them. However if we allow developers to patent everything we would have problems. Someone could patent an action adventure game played from the first person perspective and then there would only be one FPS on the market. If we lock out people from building on others ideas then we may actually kill the market instead of helping it. If patents are to be issued there should be guidelines surrounding their generality (I'm no lawyer so there may be some guidelines in place already).
-Ben Gresik

I believe it is very important to patent your video game concepts, both design ideas and technical innovations. First off, because Nintendo has failed to patent its innovations, rumble packs, joysticks, and D-pads are the industry standard for video game controllers. Nintendo lost a lot of money just because Sony and Microsoft and the other companies that produce controllers were able to steal such technology from Nintendo. Patenting game design ideas are also important, because it prevents the market from being flooded by cheap look-alikes. If you don't patent a game design, then there is a high chance of other developers making use of the idea to make a game just like it, essentially creating the exact same game. Nintendo is very big on creating games that are very different from each other. If Nintendo makes one RPG, they won't make another unless it is innovative or if it's a sequel/prequel. I think that's important to keeping the game industry alive. Oh sure, there will be less games out on the market, but I've always been an advocate of quality over quantity. I don't care how many games the Xbox 360 is being launched with; if they all suck, I'm not buying. Back in 1982, the reason the game industry suddenly stopped was because the market was flooded with so much cheap video game software that was all so alike, nobody wanted to buy the so-called "new" games that were out on the shelves. It took Nintendo to bring games back to the mainstream, with their focus on innovation. If video game developers would just patent their product designs, the technical stuff and their design ideas, then developers all over would be more challenged to create innovative games and bring new content to the market. The controllers might actually be different from each other, too, although Nintendo is going to be fixing that problem soon enough.
-Alex Marsh

Definitely not. Patent exists to encourage innovation, not stifle it. Only physical inventions should be patentable. Intellectual property is too vague an area for patents to apply. We have copyrights to protect "intellectual property". We don't need patents protecting ideas. When the founding fathers of America created patents, it was their specific intention that patents could not be used for ideas, and only for specific implementations of ideas. Software patents are already an incredible problem for innovators. It's impossible to check all patents that already exist. There are a huge number of submarine patents that aren't actively used, and are only brought up when they can be used in a lawsuit. Companies hoard these and wait for an unsuspecting personal or company, who, while trying to innovate, comes up with the same idea already covered under a patent. To avoid patent litigation, companies make agreements, to trade the rights to use patents in their portfolio. Small companies don't have/can't afford patent portfolios, and are thus left in a position in which they can not compete. Also, many patent systems let people get away with patenting things that are blatantly obvious. Even if you can show a patent to be incorrect/unreasonable/have prior art, only a large company would have to financial resources to actually fight a patent lawsuit. Most smaller companies or individuals would simply be forced to give up. Go out of business or pay unjust royalties. Large corporations are lawyers are the only ones who will gain from software and "idea" patents. They stifle innovation greatly. If we continue to allow software patents, only giant corporations will be able to compete. Anyone doing anything independently will be litigated out of existence. Many of the most intelligent people of our time have come out against software patents already. See this page for more information: http://www.nosoftwarepatents.com/en/m/intro/index.html Joe Crawford www.joetainment.com
-Jose Carlos, zooming rocket

No, and no. Because patents on game concepts and implementations is a sure way of hurting the game industry by eliminating competition and innovation. Let's look at the competition first. "Competitors, who will no doubt take advantage of the patent process for themselves, will think twice about suing you if there's a threat of you suing them back (i.e., a countersuit)." This is true, yes, but it leads to an arms race, where every company needs to spend insane amounts on filing for patents, as well as monitoring patents held by other companies. The game industry can quickly, as has already happened in other parts of the computer industry, turn into a patent minefield, where the only companies resourceful enough to survive are giants like Electronic Arts and Microsoft. But even for them, joining the patent battlefield might not be a good idea, for the reasons stated below. And patents are a threat to all smaller developers. (It took 25 years for the USA and the Soviet Union to realize that the nuclear arms race was hurting the economy. How long will it take for the computer industry? The answer is blowing in the wind.) As for innovation, yes, it suffers in the patent minefield as well. "Discouraging slavish copying encourages innovation" is only a half-truth. True, if a game developer invents a brand new concept or develops a new technique for a game engine, and does not patent it, everybody else will be in their rights to copy the invention. (They are, of course, not allowed to actually copy source code or reverse engineer the game, but that's due to copyright law and has little to do with patents.) The thing to realize is that if a competitor copy a concept verbatim and release it as their own game, few consumers will be interested. Why should they, when they've got the original? It is only when the competitor improves on the game that developers have a problem. This, on the other hand, allows the original developer to learn from the competitor, and improve their game accordingly. The consumers win, because the competition improves the products. And the game developers win, because part of the development effort is effectively shared between companies. But for this to work, the game industry must have the guts to compete on quality and price, and furthermore needs to follow its present course and say "no" to patents.

I strongly believe that software patents would limit innovation, and that copyright is better suited to handle intellectual property issues with software of all kinds.
-Martin Glaude, Blue X Software

I disagree with this very much. You speak in this article of someone building off of old game concepts with no innovation themselves. Doesn't this cause a problem in the future when developers want to build off of other technologies yet most of them have patents? I mean what determines the patent, is it the concept of the game technology? Perhaps it's the code the concept is implemented with? Over time would patents not build up to a point where paying royalties would consume the development costs, thus raising game prices and hurting the game industry? Perhaps there is something about this "great new thing" that I am missing but to me it seems this would severely damage the industry over time.
-Rob Lane, New Era Games

Imagine if the first person view had been patented by ID when they first made the original DOOM. Not only would the state of video gaming be completely different from what we have today, but the very state of video gaming hardware and graphics cards would be different. Patenting the names and likenesses of characters in video games is one thing, patenting the very ideas that video games are based on is quite another and should be rethought before things get out of hand.
-Michael Mullin

My opinion that IP law is the newest corporate scam designed to keep lawyer sin business has been increasingly confirmed by this article. The idea of owning an idea and not an implementation of one is not only unethical; it is the largest barrier to creativity and progress we've created. The idea of thinking of something and be set for life is leaching other creative minds and slowing our progress in general. I will continue to hold IP lawyers in distain and fight against further to attempts to lock and own general ideas or concepts.
-Jonah Libster

While there is no doubt that a great deal of money is to be made from patenting game design concepts, the problem is that that money has to come from somewhere, and that somewhere has to be other developers. If developers of first-person shooters suddenly had to pay to license mouse-look, free-moving first-person view, the genre itself... that's less money to develop the game. I would assume that this would lead to an increase in retail prices to ensure that there is no drop in profits. The problem here is that while exclusivity of concepts leads to innovation, the video game industry takes very few chances with the more "out there" ideas. Heavily patented and enforced game concepts would see the big companies dominate even further, giving small startups almost no chance of success. I think an important concept to keep in mind is that while video games are a business, they are also an art. While an end-product deserves full protection, the principles of the art being patented is more questionable. Slow motion is an artistic principle in cinema, but it has no owner...
-Martin Manning, Flinders University



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Quang Hong


Quang Hong is the Features Editor of Gamasutra.com.

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