To protect the IPR behind computer games, developers should try to patent specific technical features that impact gameplay. European Patent Attorney Tomi Konkonen explains with some industry examples.
“Computer games certainly represent one of the more challenging areas in terms of patenting, but it’s a high-value industry and definitely worth exploring patent protection,” says Konkonen.
The European Patent Office’s (EPO) basic requirements for the patenting of a computer game extend from the rules around patenting any software. Claims can include a mix of non-technical and technical elements, but it’s the latter that offer the most patentability.
“The EPO’s inventive step requirement is hard to overcome; only technical features are considered,” says Konkonen. “So it’s important to list these in detail in your claim and think about how your inventions work in relation to gameplay. Be really thorough when you do this.”
Learning by example
Computer games are typically classified under CPC Classes A63F13 (Video games) and A63F2300 (Features of games). These classes include more than 200 subclasses that address game type (racing, shooting, etc.) accessories, client-server communication, P2P dynamics, game progress, character control, security and more.
The biggest patent holders in the industry are the familiar names in gaming: Sony (approx. 700 titles), Nintendo (250), Microsoft (200), GREE (200), Tencent (150), EA Games (100), Immersion (100) and Kabam (100).
“Case law does not define specific definitions as to what is and what’s not patentable in a computer game, so the best way to look at the landscape is through examples,” says Konkonen.
Sonic the Hedgehog
Japanese gaming powerhouse Sega created Sonic the Hedgehog in the early 1990s. Today, Sonic is a media franchise of books, comics and merchandise. A feature film was launched in 2020.
Sega first introduced multiplayer and cooperative gameplay with Sonic the Hedgehog 2. This posed a technical challenge when players are at different levels of ability, in that the better player could leave the other one behind. Sega addressed this challenge through patent EP2578281B1, which ensures that players stay in close proximity to one another.
“This is an interesting case, as it shows us that player interaction within the game itself can be patentable,” says Konkonen. “Sega was able to patent the technical feature that keeps the players close to one another.”
Another Japanese gaming house, Konami, patented some key features of a two-player football game.
The game displays indicator marks that help players direct the ball to one another. The marks are also used to indicate the location of the ball when it has been kicked outside the visible area of play. Konami was able to patent the technology behind these marks.
“This is one of the famous decisions from the board of appeals of the EPO,” says Konkonen. “The technology behind the indicator marks was judged to be making a technical contribution to the prior art, and thus the EPO approved it as a patentable invention.”
Disney’s chat platform
Patent applications in the gaming industry are not always approved though. For example, Disney tried to protect a chat platform that automatically customized a shared chat environment based on common user preferences. The EPO did not consider the use case to have any distinguishing technical features, and thus the application was rejected.
“While this case was definitely patent eligible, the technical contribution was not clear,” says Konkonen. “We have to remember that games often involve the presentation of information, as we’re dealing with an environment full of rich graphics. But the way information is presented is not patentable. The technical capability should have been better communicated.”
See here the webinar recordal on the topic.