WA state and federal copyright and patent infringement laws

While computer programs can be protected under patent law, as a practical matter you need to be more concerned about whether the source code for your game infringes the copyright protecting someone else's source code or game story line or the trademark / trade dress rights that protect the game that is "similar" to the one you're trying to recreate.

As to your source code, if it truly is a creature of your own making then it cannot infringe anyone else's copyright in their source code. Programmers rarely write from scratch, though, and borrow bits and pieces from the "public domain." Microsoft is involved in a case right now in which it is accused of infringing a 54 line macro that it claims has been in the public domain for years. The alleged owner of the copyright in the macro asserts otherwise and so the two must go to trial on the question of whether Microsoft's 160,000 line program infringes the 54 line macro. In short, borrowing code is risky. Again, if yours truly is "new" then you have little concern over infringing someone else's source code copyright -- which is not to say, of course, that you cannot be sued for infringement only that you may have a good defense.

Copyright also protects the specific story line, characters, and other game-specific details of the game you intend to re-create. The reason no one may lawfully claim the exclusive right to sell "first person shooter style" games (or books, or movies) is because that abstract concept is part of our public domain -- which permits anyone to put a specific form to that abstraction, which, if specific enough, is then protectable under copyright law. There are, for example, many stories about people with superhuman powers who use them to save the world, but there is only one version with the specific details found in the TV show "Heroes" or the comic strip "Superman" or any other number of iterations on the theme. In short, literary works can be viewed on many "levels of abstraction" and what is protectable under copyright law are those particular expressions of a work that are sufficiently detailed to distinguish the work from all others based on the same abstract theme. So creating another first person shooter style game is fine. Just do not re-create too closely the "similar" game you're using as a template. And no, there is no black and white rule on what it means to be "too close." You need competent legal advice on that question before you begin to start writing code, during your creative process, and certainly before you unleash your game onto the world.

In addition to copyright protection, games are branded via trademarks and trade dress (the "look and feel" of the game). The key issue here is whether a gamer would likely wrongly believe that your game was created by someone else because of the name of your game, its logo, or its "look and feel." Again, no black and white rules on how to determine if someone would likely become confused.

All of the above is just general advice and does not constitute legal advice as to your particular situation. Have fun.

The creators of "Scrabulous" hit this same problem. The makers of Scrabble served them with a takedown notice and they took their game off the internet. However, its arguable whether their copyright in the board game and rules would cover a similar concept for a different media. Ideas can' be copyrighted, just their expession (in copyright) or their embodiement (for patents.) Trademarks protect against consumer confusion, so stay away from similar sounding titles.

I'd recomend you discuss your game with an IP attorney to ensure that you don't step on any toes.

You write: " I am sure the concept is patented, how did creators get away with it. Did they have to license their games to the first creator of the shooter game?"

Each national jurisdiction has its own patent law. Although there are many similarities, they vary greatly from country to country regarding the protection that is available for inventions involving computer software. Let's talk now just about patents in the United States.

The owner of a U.S. patent has the right to seek to exclude anyone else from making, using, selling or importing the invention into the country. The invention is defined by one or more numbered paragraphs in the patent called "claims." Each claim defines a different aspect of the invention, and one infringes the patent if the accused product is within the scope of any one of the claims. In a printed patent, the claims are at the end of the text. In the text version that's online at the U.S. Patent and Trademark Office's (USPTO) website, the claims are presented near the beginning, after the bibliographic information.

It has become relatively straightforward to find relevant U.S. patents, as both the USPTO and Google provide online search tools without charge. So if you wish, you can look for patents relating to shooter games by clicking on the links I am providing with this answer.

Of the patents that seem to be pertinent, look at each of the claims to get an initial guess on what that patent might cover. However, you should understand that a patent is interpreted as a legal document, and sometimes the scope of a patent claim is rather different from what the claim seems to say in English. When in doubt, consult a patent attorney with whom you establish a confidential professional relationship.

Generally, when someone is issued a U.S. patent, the claims will have been carefully reviewed by a federal employee called a Patent Examiner, and will have been found to define subject matter that is novel and is not obvious from a combination of previous publications or uses to a person having ordinary skill in the technical field. Thus a patent claim cannot lawfully encompass subject matter that was already publicly disclosed at the time the invention was made.

Would the creator of a patented shooter game have to license the patent on the new game to the creater of the first shooter game? Probably not. However, if the creator of the first shooter game had obtained a valid U.S. patent and it is still in force at the present, the creator of the later game should either get a license under that first patent or get an opinion from a patent attorney that the later game doesn't infringe any of its claims.

Sir and Madam: this is Nanyan Huang \(Nancy). Game and Computer program similar and concept is similar, that is possiblly infringement, it dosn't matter what code and language program. If possible technique and concept similar both should have license but it matters who is first creator. If do not cause infringement should purchase copyright code and concept.

Myself also have possiblly copyright earliest digital computer program.

Sir and Madam: this is Nanyan Huang \(Nancy). Game and Computer program similar and concept is similar, that is possiblly infringement, it dosn't matter what code and language program. If possible technique and concept similar both should have license but it matters who is first creator. If do not cause infringement should purchase copyright code and concept.

Myself also have possiblly copyright earliest digital computer program.