Game Patents: A Waste of your Money

Below is the text of the slides.  There's more to the presentation, of course, than the slide text.

Dr. Lewis Pulsipher
PulsipherGames.Com
“Game Design” channel on YouTube

I am not a lawyer
But I’ve listened to lawyers discuss game IP quite a few times
And I’ve read a lot
While this isn’t legal advice (and wouldn’t be even if I was a lawyer), I think it’s a good brief summary
If you want legal advice, talk to a lawyer (who’s experienced with game IP!)

A Patent:
Protects a specific expression of an idea
Usually a product
But there are also “design patents” and “method patents” these days, to help the PTO (Patent and Trademark Office) make more money, I think
Must be novel and non-obvious
Limited duration (20 years (or less) in USA, down from 26)
Apply only in one country!
Copyright is respected in most countries through Berne Convention
Patent and trademark apply (and must be applied for) country by country

Novelty
“One important concept that is lost on a lot of lay people is that when you sue to enforce a patent (and I am an IP trial lawyer who defends big companies daily), you are allowed to argue that a patent is obvious by combining two or more other things. . . sort of like combining chocolate with peanut butter.” - Steve Facie
The Patent and Trademark Office has allowed many such obvious patents, but the courts are much more strict
Such as the patent on providing an 800 number for people to call when they’re uncertain about the rules for a game
But even Hasbro didn’t spend the money to challenge it in court

Patent Office is a Big Mess
US Patent and Trademark Office is thoroughly screwed up because it self-funds
The more patents it issues, the more $$$ it makes
Not surprisingly, the PTO “regularly and routinely issues patents [that are] plainly invalid and are found to be such when enforcement is sought.” (Steve Facie, IP lawyer who participates in patent trials)
This is where “patent trolls” come from: buying up ridiculous patents that have nonetheless been issued by the PTO, the trolls try to scare companies into paying royalties on this trash

Patent Costs
Expensive to file ($3-10K according to lawyers)
Plus $565, $1425, $2365 for maintenance fees paid at 3 1/2, 7 1/2, and 11 1/2 years after your patent is granted. These fees maintain your legal protection
Worse, far more expensive than this to defend in court
And about 2/3 of patents are invalidated when they get to court
Successful games are very rarely patented
Games you never heard of, and never will, make up virtually all of the patents
Which anyone can look up online

Cost versus your Revenue
Why spend more money than you’re likely to make on the game?
Very few games (tabletop or video) are patented
The most well-known patent is on Magic: the Gathering, not just on “tapping”
“look and feel” come into it
It has now expired
You can see the latest patents online – virtually all are utterly foolish, such as a new way of betting on BlackJack!
Not novel
Obvious
And Useless!

And it’s not likely to “Stick”
. . . If challenged in court
“. . . roughly TWO THIRDS of all patents asserted in litigation are invalidated (i.e., forever killed) either at trial or on appeal. In other words, the Patent and Trademark Office regularly and routinely issues patents [that are] plainly invalid and are found to be such when enforcement is sought.” IP Lawyer Steve Facie


Patent versus Copyright
Copyright protects the look and artistic presentation, including the actual wording, of a work
Copyright violation is to some extent a criminal matter, patents are purely a civil matter (government does not enforce, no law is broken)
Copyright is supported in most countries via the Berne convention; patents must be filed in every country where you want protection

Lawsuits?
I read much more often of copyright lawsuits than of patent suits
Wizards of the Coast takes on Cryptozoic Entertainment in CCG online lawsuit
Keep in mind, this is based on copyright, the patent has expired
Crytozoic issued a CCG that is just too much like MtG
http://www.examiner.com/article/wizards-of-the-coast-takes-on-cryptozoic-entertainment-ccg-online-lawsuit
Triple Town video game suit also based on copyright, not patent

Copyright (and trademark) are your friends. Find a game designer who has obtained a patent, and almost always, you’ll find one of those “suckers born every minute.”

******

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