New Patent Law Shifts Gaming Landscape

New Patent Law Shifts Gaming Landscape


Game companies are going to start filing a patent for everything.

The United States Patent Office (USPTO) once championed the little guy, encouraging individuals to create new products and drive innovation through a "first-to-invent" system which awarded rights to the creator regardless of when he or she made that invention known to the public. That system prevented abuse by corporations to "steal" an inventor's ideas and apply for a patent to receive all the benefits that entails. With the 2011 Leahy-Smith America Invents Act, the U.S. switches to the system held by most of the rest of the world, awarding a patent to the first entity to file an application with the USPTO. S. Gregory Boyd from the lawfirm Davis & Gilbert LLP deals with the gaming industry often and he believes we will see a glut of applications from gaming hardware manufacturers like Nintendo, Sony and Microsoft after the AIA goes into effect in March 2013. But, interestingly, the act may actually foster more innovation with specific concessions to smaller indie companies.

"Independent developers do score a pretty big win with the new micro-entity status that makes patent fees more affordable for very small companies," Boyd said. "Also, making provisional applications more useful overall in a first-to-file system is helpful for independent developers. Those provisional applications are cheaper to file than full applications on the whole."

A micro-entity is defined as someone who makes less than 3 times the median annual income in America or is associated with a university. These micro-entities can file a patent with 75 percent of the fees that big corporations must pay.

The problem with "first-to-file" is that corporations with the resources will start filing for a patent for every half-baked idea or concept in their R&D pipeline, further clogging up the USPTO with "vitality sensors" and useless peripherals. "The US patent office will probably continue to do a pretty poor job at handling those applications in a timely manner. The wait time is often more than three years and some applications are pending as long as seven or more years," Boyd said. "I suspect the wait time at the USPTO will be fixed right after the line at the DMV is fixed."

One solution is to force inventors to submit a working prototype as was required with a patent application in the 1800s. Boyd doesn't think that is feasible and may actually hurt independent innovators and game developers. "If we require a working prototype then the large tech companies of the world will almost always win," Boyd said. "Working prototypes require more money. If patent law requires just 'really good' plans, that actually helps the little guy in most cases. Generally speaking, it would work for the benefit of small companies in games as well."

S. Gregory Boyd loves playing games in addition to working with game companies on legal issues, but he prefers escapism rather than games that dramatize courtrooms like the Phoenix Wright series. "It can be fun if a trial is part of a quest in an RPG and I have seen that done well, but I think a game based on drafting contracts would be excruciating," he said before admitting most of his job is rather dull.

"There is a reason you have to pay people to draft contracts - because it is very difficult and not very fun," Boyd said. "I'm like everyone else in my demographic on my time off. When I get home to play games, I like to build empires, slay orcs, and blow stuff up.

"Speaking of slaying orcs, my true calling in life is Orcs Must Die."


Of course the bigger problem is that, as of late, the Patent Office has been approving patents on things that are concepts rather than actual technology with numbers behind them and such. Instead of having to have sheets of diagrams and schematics laying out the technology behind capacitive touch screens, Apple gets to patent the concept of screens that can read from multiple touch points at once. Adobe gets to patent the concept of a button that automatically charges your credit card and places an order for an item in their store.

Going even further back (and using the diagram in the article as an example), Nintendo got to patent the concept of a directional pad shaped like a plus sign. Not even kidding. That's why the PlayStation's has gaps between the buttons and the Xbox's is a circle. Nobody else is allowed to sell one that's shaped exactly like Nintendo's.

This has little to do with the actual topic, but I doubt that would have fostered much discussion and somebody would have brought this up soon enough if I hadn't.

The patent system has outlived its purpose. Free markets are superior to patent monopolies, and there is already sufficient incentive to innovate with technology.

Even without patents, it will take competitors months to reverse engineer a clone and bring it to market. The innovators could extend this advantage by using domestic labor and production instead of outsourcing it to foreign factories that will give up their secrets more quickly.

Preventing corporate espionage through copyright laws, private contracts, and domestic production is a better solution than government enforced patent monopolies.

I, uh... I always thought it WAS a first-come, first-serve thing. I, in fact, thought that was WHY the patent office was so backlogged... everyone applying for a patent the instant they get an idea.

If that wasn't happening AND NOW it will... hooboy we're in for a stormy decade (well, when it comes to patents).

In other, completely unrelated, news I'm going to go see if the patent office has any new data-entry jobs...



Preventing corporate espionage through copyright laws, private contracts, and domestic production is a better solution than government enforced patent monopolies.

What do you think copywrite law is doing? It's having the government enforce the concept of intellectual property... just like patent law.

And your multiple use of the "patent monopolies" phrase smacks of rhetoric... which radio host did you get that from? Patents don't form monopolies as it doesn't exclude others using the design commercially.


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