Kristen Hansen

If you look closely enough, you’ll find patent numbers on most of the physical products around you. Much like their copyright and trademark cousins, these designations are far from cosmetic. Instead, they serve a statutory requirement to provide public notice about your protected intellectual property. In the case of patent marking, not only does it reduce the risk of infringement because you are informing potential infringers of the patent’s existence, but the notice also marks the point in time to which you can go back for collecting on awarded damages.

An invention cannot be patented if the differences between a claimed invention and the prior art are such that the claimed invention as a whole would have been obvious to a person having ordinary skill in the art at the time the invention was made. Determining obviousness – and the validity of your patent – is more than simply establishing that the invention doesn’t already exist and that it isn’t documented elsewhere. Its conception must also not have otherwise been obvious to those in the field at the time.

Is your patent application only good enough to get through the examination process? Or has it been crafted to stand the tests of time and varied audiences if you later need to assert that document against an infringer, find yourself litigating with it in an Article 3 Court at the hands of a judge and jury, God forbid, end up having to defend its validity at the Patent Trial and Appeal Board (PTAB), or even needing to use it to block pirated imports at the International Trade Commission (ITC)? The difference is often quality.

Claim construction is a process in which courts attempt to interpret the meaning and scope of the claims of a patent. It’s effectively reconstructing what an inventor and their practitioner meant back when they drafted the patent application. While your patent might not be tested in a court for many years, understanding the sometimes-surprising language specifics and context traps while drafting now can help set you up for success later when defending your patent or attempting to stop an infringer. The words you choose now and the support you provide when drafting are your opportunity to help de-risk the process of courts and juries later interpreting what you meant. And oftentimes, claim construction can be the key factor in resolving disputes even before litigation, with the facts that come out of claim construction deciding the monetary value and payouts in settlements.

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.