Patently Strategic Podcast: Patenting Games

The global video game market topped $183 billion in 2022 and is projected to exceed $300 billion by 2026. To put those numbers into perspective, this makes gaming bigger than the film and music industries combined – and dwarfs the combined revenue of the NFL, NBA, MLB, and NHL! Worldwide board game sales, while significantly less, still account for over $2 billion. That’s a whole lotta IP in need of protection, so in this month’s episode of Patently Strategic, we’re talking games. From patenting classic board games like Monopoly and Battleship back in the 1930s to challenges with protecting modern innovations in areas like game development and VR, our experts are breaking down everything you need to know about patenting games so you don’t end up just rolling the dice when investing in protections for your entertaining innovations.

Episode Overview: From Pieces to Pixels 

As a bonus, in this month’s episode, we’re bringing you two dealers: Dr. David Jackrel, President of Jackrel Consulting, will be covering the physical realm of board games and toys. Kristen Hansen, Patent Strategist and software guru here at Aurora, will be covering all things computer and video games in the second half. David, Kristen, and the panel discuss:

• Types of IP protection for games, including options for patents, trademarks, and copyrights
• Subject matter eligibility concerns for game patents
• Claim analysis examples
• Patentable aspects of video games
• The hierarchy of video game elements

Protection Scattergories 

Starting at a high level, there are various types of IP protections you can pursue for games. Like with many other product categories, there are three primary pieces to consider when completing your IP protection puzzle – each with unique coverage and valuable uses for stopping copiers.

Board games. We primarily discuss patents in this episode, but for reasons we’ll address below, there are only specific aspects of a game that you can patent. For example, you can’t patent abstract ideas like the rules of the game, but you can pursue protection for physical attributes of board games (board configurations, electronic components, physical playing pieces, etc.). For aspects such as names, logos, and slogans, you can consider trademarks. For elements like the visual designs for game boards, cards, artwork, and text (dialogue, rulebooks, etc.), you can look to copyright protection.

Video games. The range of patent-protectable attributes does open up some when talking about computer and video games. Despite considerable uncertainty around the specifics, it can be possible to patent computer-implemented methods (rules) since they depend on technology to implement (vs. game rules purely in the abstract). Do note that this comes with volumes of fine print, as discussed below and in prior episodes. Beyond the software itself, video games offer additional protection angles, including electronics, displays, interfaces, auxiliary devices, and console hardware. In terms of copyrights and trademarks, you’re generally talking about similar protections, with the notable addition of the ability to copyright code.

Patent Eligibility: A Game of Risk

Patent law defines four categories of patentable inventions: machines, articles of manufacture, processes, and compositions of matter. There are three areas that the courts have said (or perhaps slurred, depending on who you ask) you’re not allowed to patent in: laws of nature, natural phenomena, and abstract ideas. The area of biggest concern for video games (and software in general) is around the abstract idea exception. Abstract Ideas can be further grouped into mathematical concepts, mental processes, and organizing human activity. Our panel discusses where digital and physical game developers have been both successful and met the sharper corners and courtroom uncertainties surrounding eligibility. This includes analysis of cases like Planet Bingo v. VKGS (Fed. Cir. 2014), In re Smith (Fed. Cir. 2016), In re Marco Guldenaar (Fed. Cir. 2018), and how they draw from precedential eligibility SCOTUS cases like Bilski and Alice (aka two of the Four Horsemen of the Innovation Apocalypse).

Discussion Panel 

David and Kristen are joined by our always exceptional group of IP experts. Two exceptional gamers who would never be regarded as NPCs:

• Ashley Sloat, expert hotel builder and securer of rights on properties of all colors, but especially the green ones.
• Ty Davis, who’s always playing chess when it comes to claims.

Mossoff Minute: Advancing America’s Interests Act

Professor Adam Mossoff recently attended the annual Inventor’s Hall of Fame induction ceremony and, for this month’s Mossoff Minute, discusses two sets of inductees and their groundbreaking inventions of the mRNA platform and CRISPR gene editing technology. We’re also publishing excerpts as short-form videos on Instagram Reels, YouTube Shorts, and TikTok.

Back in 24

This will be our last episode for the year. We’ll be taking next month to focus internally on some big tech upgrades to better serve our clients, but we’ll be back in the new year with an excellent lineup of episodes with discussions on topics like AI implications for patenting, deeper dives on claim strategies, expert interviews with key players in patent reform, more great inventor stories, and a series we’re very excited about that will explore strategies for crafting quality patents that will increase your odds of success if faced with the PTAB or should you need to leverage the ITC to block import of infringing inventions.

And as we head into the holidays and turn the corner from Thanksgiving, we want to give thanks to all the innovators out there who are working so hard to shape our future and to the tireless revolutionaries, battling in the trenches of innovation policy and patent reform, fighting the good fight, to ensure inventors have a path cleared for strong, predictable, and reliable patent rights. Thanks for all you do. It’s a blessing to know and work with you all.

Related Listening and Reading

For a deeper understanding of some of the IP topics mentioned in this conversation, see the following past episodes:

• Software Patents: Protecting Your Digital Innovations. Strategies for protecting software innovations while dealing with SCOTUS decisions like Alice.
• Into the Patentverse Vol. 1. Patenting the core ingredients of the metaverse: Web 3.0, Blockchain, Cryptocurrency, and NFTs.
• Into the Patentverse Vol. 2. AR, VR, and Virtual Infringement in the Metaverse.
• Brand Protection. A deeper understanding of copyrights and trademarks and some of the sharpest corners you should be aware of when managing your own brand protection.
• Patent Wars: Innovators, Revolutionaries, and the Race to Reform. A more complete view of the eligibility problem that is plaguing the patent world.