Patents and the gaming industry

Gaming can be defined as the running of specialized applications on consoles or personal devices for entertainment purposes. Generally, it is perceived as a hobby and in some cases, a competitive sport. Technological developments, over the years, have significantly advanced the gaming industry. Today, gaming products are not just restricted to personal computers or console devices. It has extended to advanced technological inventions such as Virtual Reality systems. As of 2021, the global gaming market was valued at $175 billion making it the largest media category by revenue. The gaming industry is expected to reach a value of $314.40 billion by 2026, thus registering a Compound Annual Growth Rate of 9.64% (from the period of 2021-2026). Interestingly enough, IPR and its interface with the gaming industry have pushed companies to patent several components pertaining to gaming systems or gaming products. A patent can be defined as an exclusive proprietary right that is granted to an inventor. In other words, a patent provides an inventor exclusive rights over a patented process or an invention for a fixed period of time. An inventor or a patentee may also license the invention to a third party for monetary benefits. Moreover, a patent also restricts third parties from using the invention in an unauthorized manner. Currently, several gaming conglomerates have patented their gaming systems and gaming software. In the past, gaming companies have patented systems within games and have made the patent freely available to developers for learning and modification purposes. Gaming companies have also patented game mechanics and codes that run the gameplay as well.

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Relevance of patents in the gaming industry

Gaming products and software are the by-products of human intellect. In the past couple of years, there has been an influx in patents filed for gaming software or gaming products. Essentially, gaming patents are filed in order to credit the original creators of the gaming products. Moreover, the patenting of gaming products would also allow patentees to commercialize their creations through third-party licensing. Most importantly, patenting a gaming product would restrict other competing gaming conglomerates and unauthorized parties from duplicating or plagiarizing components of the game. Game ideas, gaming controllers, consoles and systems, gameplay methods or directions, figurines, merchandise, or accessories related to the game are some gaming products that are typically patented by gaming companies.

While initially the Patents Act, 1970 had restricted the patenting of computer programs per se, the 2005 amendment of the Patent Act explicitly stated that a computer program’s technical application to an industry or a combination with hardware is patentable. Therefore, if a computer program is combined with hardware and has some level of industrial applicability, it is patentable as per the Act. While there are no laws that shed light exclusively on the patenting of gaming products, it is possible to patent a gaming product as per the aforementioned provision.

Popular examples and cases related to gaming patents

“Odyssey system”, the brainchild of Ralph Baer is one of the first video games to receive a patent in the year 1968. Odyssey system allowed users to manipulate lines and dots on a home television set by attaching an apparatus to the same. Ever since then, several gaming conglomerates have attempted to patent various gaming products ranging from novel game concepts to game engines.

Cases related to gaming patents:

• Sega of America v. Fox Interactive Et. Al.  (2003)

In 2003, Sega as well as the owner of the Crazy Taxi franchise filed a lawsuit against Fox Interactive, Electronic Arts, and Radical Entertainment. It was contended by Sega that the Simpsons: Road Rage, a video game that was based on the American television series The Simpsons was a patent infringement of the crazy taxi game. This was primarily due to the fact that crazy taxis, as well as road rage, shared identical gameplay and objectives. Several aspects of the game such as the markings of “danger zone” or “caution zone”, the maps, and the destination arrows were identical in both the games, thus making a case for patent infringement. However, the case was settled through a private mediation session.

• In Re Marco Guldenaar Holding B.V (2018)

In this case, the patent application for a “Casino game and a set of six-face cubic colored dice” pertaining to dice games played in gambling casinos, in which “a participant attempts to achieve a particular winning combination of subsets of dice” was rejected upon examination. This was primarily due to the fact that the claims pertaining to the patent were directed to the abstract idea of “rules for playing a game” which fell under the ambit of “methods for organizing human activities”, thus making it a non-patentable subject matter.

Most prominent gaming patents as of 2021

• Ping system patent (EA)

The ping system, which is the brainchild of EA, is a system that allows a player to communicate with their teammates in Respawn’s battle royale hero shooter by marking the points of interest and calling out the location of an enemy. Moreover, the ping system also enables in-game functions such as voice chats, thus helping players with cognitive, hearing, or speaking disabilities. The ping system was patented by EA as a part of its Accessibility Patent Pledge which was an initiative that disseminated accessibility led patents to developers. As a result, developers were encouraged to modify or work on the components of the patent. This would, in turn, encourage collaboration and facilitate accessibility in the gaming industry. In a recent interview by Games Radar, EA has stated that "when you patent a technology or idea, you publish technical information that would otherwise have never been accessible to the public", and as such, this "equips developers with know-how and it advances the state of the art in game development". 

• Dual reality gameplay (Bloober team, the medium)

The dual reality gameplay refers to a gameplay wherein you take on the role of a fictional character that controls various aspects of both the real world as well as the spirit world within the game. The Bloober team (creators of the dual-reality gameplay) has claimed that the gameplay is unique in nature and is an officially patented gameplay due to the same reason. The patent for the dual-reality gameplay was filed by Bloober in the year 2016. More specifically, the developers behind the gameplay have patented “the method of simultaneous playing in single-player video games”.

• Nintendo D-pad patent

The Nintendo D-pad is a gaming console that was quite popular back in the 80s. Its efficient console design made it one of the best consoles that were manufactured by Nintendo. Due to its extreme popularity, Nintendo had patented the “multi-directional switch”. The patent application, with respect to the console, states the following: “A four-directional switch which can be turned on and off in four directions, which comprises a base plate having a plurality of electrodes formed thereon, a key top having an indication showing predetermined four pressing directions in an identifiable manner, a support member constituting a fulcrum between the base plate and the key top”. Although the patent expired in 2005, it still remains one of the most popular gaming consoles to be patented.

The gaming industry is expected to grow at an exponential rate in the coming years. The industry’s interface with IP laws has facilitated the protection of video games and their related products which is essential to credit and incentivize creators in the industry. The patenting of video games could also significantly help gaming companies to commercially exploit their inventions through licensing agreements. Moreover, legally protecting unique gameplays and gaming products could also provide a competitive advantage to the creators as well. Thus, the introduction of patents into the gaming industry has accelerated the growth and innovation in the realm of gaming technologies.

Author: Sanjana, a BBA LLB student of  Symbiosis Law School (Hyderabad),  in case of any queries please contact/write back GLOBAL PATENT FILING at support@globalpatentfiling.com.