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Patent Basics for Game Developers

Posted by attorney Daniel Rosenthal

While an in-depth knowledge of the law is not critical for most game developers, there are a few legal principles that all game developers should be at least superficially familiar with. Before getting into the legal issues, first an important disclaimer:

There is no substitute for legal advice provided by a licensed attorney in your jurisdiction; the information provided herein is intended as academic and does not constitute legal counsel, nor the establishment of any privileged communication or work product, nor any fiduciary relationship with the author.

That out of the way, let's talk about the issues*. There are three major areas of law that touch the game industry: intellectual property, contracts, and labor law. Today, we'll be discussing intellectual property, specifically Patent. For other areas of law, see my other guides.

* Unless otherwise noted, we'll be referring to U.S. law.


Patents are the opposite to copyright in just about every way possible. They're both authorized by Art. I Sec. 8 of the Constitution, but beyond that they couldn't be more different.

Where copyright protected tangible expressions, patent protects the ideas themselves. Where copyright provides a long term with a relatively weak protection, patent provides a very strong protection for a short term. Where copyright occurs automatically and is very cheap to register, patents must be applied for and are typically expensive. As developers you will be dealing with patent less often than you will be dealing with copyright.

Patents grant a right to exclude others from making, using, offering for sale, exporting or importing components to be assembled into an infringing device, or inducing others to infringe on the patented invention. Typically this protection lasts for 20 years from date of filing. As you can tell, patents are commercially oriented. They're designed to ensure that only the patent holder gets to profit from his invention for that period. To that end, there are four rules for obtaining a patent:

  • be of patentable subject matter eligible for patent protection,
  • some aspect of it must be novel (new),
  • be non-obvious
  • be useful

In order to gain protection, you must fill out a properly filled claim outlining what your invention does and how it works. The process of making this claim is extremely complex, and the process is long and expensive. A single mistake can send you right back to the start. It is vital to seek a patent attorney if you are considering filing for a patent. Recent reports are showing that the average patent with no major errors costs over $10,000 to obtain and takes a minimum of 18-24 months. That's assuming everything goes right. But what happens if someone shows up and says "but wait, I created this first!" That's called presenting "prior art" and it can invalidate the whole process if they can prove it, even if you filed first. Another irritating feature of patents is that they require that you expose your creation to the entire world (or really, anyone who wants to look for it). There are several patent attorneys who deal specifically in the realm of video game patent law, and you'd be well advised to seek one before you publicly display anything that you create.

In general, you'll want to remember that most things can only be copyrighted OR patented, as the two are mutually exclusive; however compilation works can contain both. For instance, you may be an MMO designer and hypothetically patent a unique form of network transactions that your game utilizes. The dialog for your game is copyrighted. The game itself may be copyrighted as an entire work. Overall, however, you will be able to have a combination of IP rights including both patent and copyright protecting your creations. That combination is much stronger and cohesive than relying on one or the other.

Patents are governed by federal law, and are granted by the USPTO -- the US Patent and Trademark Office.

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