Re: Re: game idea = copyright or patent?

>Does anyone know of review articles concerning the case law of IP in games.

Well, patents are psuedo-statutes, so any review of groups of patents would be of interest. To date, there are over 12,000 patents that mention "game" or "games" in the abstract. Some recent titles as follows:

    6,902,165  Methods of playing variations of chess
    6,902,490  Billiard games
    6,899,619  Method for game of Stos
    6,899,331  Construction toy American Football game
    6,896,265  Casino flop poker
    6,896,263  Game for teaching fundamental dating lessons
    6,893,021  Wrestling card game
    6,889,981  Card games involving increased possible combinations of cards
    6,887,171  Basketball-type game and appartus
    6,886,830  Method and apparatus for playing a diceless Craps game

It seems the patent system is sending a clear signal - games are too much process, method and structure and thus appropriately patentable, and under the domination of 17 USC 102(b), not overly copyrightable. And these patents above are mostly non-electronic - the electronic games being even more technical are even less copyrightable.

>My argument may sound a bit like an attempt to protect look and feel,
>but I think the mathematical finiteness of rules allows for a tighter
>mensuration of the resultant domains of originality and expression
>than might be possible in the areas of look and feel (as perhaps separable
>from interface design, which again takes on a more Chomskyan grammatical
>flavor).

Nice try to escape look-and-feel, but it won't work. As the 12,000+ patents show, the patent system is well equipped (and appropriately so) to handle the protection of expression (which you will see in the dependent claims), and that such expression is still too functional (being in patent claims) to be patentable. In one sense, patent claims are flaors of Chomskyan grammars, so anything patentable is essentially uncopyrightable.

Indeed, the very hallmark of the patent system is protecting specific finite set of rules (112 enablement requirements). The more games are so specifiable, the more uncopyrightable they should be under 102b despite the fact that they are more comparable udner 102a. Of course, all of the copyright arguments are essentially nonsensical in that too many statutory terms are undefined until judge reaches a conclusion and uses the term as labels.

The fact that there are so many game patents, many of which are held by sole inventors, means that such protection is not prohibitive for sole inventors.

Back to rules. What are rules but processes and methods, a sequence of instructions? Is it not more honest to pose the question "I have a new game, whose processes and methods are a variant of X - is it protectable?" To the patent system, the only questions are how novel and unobvious is your variant (and today the threshold is admittedly too low). The copyright system essentially does have the same questions (filtration and comparison), but first has to resolve the nonsense of whether your game's processes and methods are 102b processes and methods.

Much like softare, games force the issue of the resolving the growing complete overlap of patents and copyrights, in particular, dependent patent claims that are essentially protecting expression. If patnt claims are functional, it seems to prohibit the copyright.

If your students have some time to spend, have them do a comprehensive survey of game patents, in particular, what is appearing in ependent claims.

Greg Aharonian Received on Tue Jun 14 2005 - 22:45:00 GMT