patents
Patents in video game
<p>Following my <a href="https://law.stackexchange.com/questions/59648/copyright-in-video-games">previous post</a> about copyrights, I now seek information about patents in video game. According to the <a href="https://www.wipo.int/patents/en/" rel="nofollow noreferrer">World Intellectual Property Organization</a> :</p>
<blockquote>
<p>A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.</p>
</blockquote>
<p>As stated by the same source, several condition must be met to obtain one, including :</p>
<blockquote>
<ul>
<li>The invention must show an element of novelty;</li>
<li>The invention must involve an “inventive step” or “non-obvious”, which means that it could not be obviously deduced by a person having ordinary skill in the relevant technical field;</li>
<li>The invention must be capable of industrial application, meaning that it must be capable of being used for an industrial or business purpose beyond a mere theoretical phenomenon, or be useful.</li>
<li>Its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, aesthetic creations, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, methods for medical treatment (as opposed to medical products) or computer programs are generally not patentable.</li>
</ul>
</blockquote>
<p>I believe the three first conditions are rather obvious, while the last seems to be much more complicated. What is the difference between something patentable and something that is not ?
How difficult would it be then for a video game corporation to patent an idea, as suggested in my previous post ?
I would be very interested in any information regarding this subject, as I don't really understand how this has not already became a war in the video game industry.</p>

<p>Yes you can patent video games in the U.S. The quote from international law is not fully applicable to the U.S. In the U.S. there is no requirement for industrial applicability or being a technical solution to a technical problem
The USPTO has several classes aspects of video games might fall into one is</p>
<ul>
<li>
<blockquote>
<p>CLASS 463, AMUSEMENT DEVICES: GAMES    1   INCLUDING MEANS FOR
PROCESSING ELECTRONIC DATA (e.g., computer/video game, etc.):    2 .
In a game including a simulated projectile (e.g., bullet, missile,
ball, puck, etc.):    5    .. Simulated projector with diverse
interactive target:</p>
</blockquote>
</li>
</ul>
<p>The patentablity of games in the US has become more difficult after the SCOTUS Alice decision. There is a very detailed answer on <a href="https://patents.stackexchange.com/questions/16344/video-game-mechanics-patentable">Ask Patents</a>. This is a good article on the patenting <a href="https://www.ipwatchdog.com/2011/12/22/patenting-board-games-101/id=21356/" rel="nofollow noreferrer">board games</a>. However it was before <a href="https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_International" rel="nofollow noreferrer">Alice</a>.</p>

<p>A lot of stuff is precluded:</p>
<blockquote>
<p>The invention must show an element of novelty;</p>
</blockquote>
<p>Games don't recombine technology in a truly novel way. They <strong>use</strong> established technology (Game engines). Game engines can patent parts, for example, the <a href="https://patents.google.com/patent/US8413166" rel="nofollow noreferrer">Physics engines for games had been attempted to be patented as a method for chips</a>. <a href="https://patents.google.com/patent/US20110321057" rel="nofollow noreferrer">Or this</a> and <a href="https://patents.justia.com/patent/10437563" rel="nofollow noreferrer">this</a> - Yes, &quot;how to model physics in a computer language&quot; is novel. But &quot;How to engage a player&quot; is not novel, neither is &quot;NPC&quot; or &quot;NPC hunting player&quot; - those were not even new when Ultima Online was around.</p>
<blockquote>
<p>The invention must involve an “inventive step” or “non-obvious”, which means that it could not be obviously deduced by a person having ordinary skill in the relevant technical field;</p>
</blockquote>
<p>This too does not apply to games - any ordinary <em>computergame programmer</em> with the same toolset (game engine) can invent the same result if given the task.</p>
<blockquote>
<p>The invention must be capable of industrial application, meaning that it must be capable of being used for an industrial or business purpose beyond a mere theoretical phenomenon, or be useful.</p>
</blockquote>
<p>Games are sold, so they have business applications...</p>
<blockquote>
<p>Its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, aesthetic creations, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, methods for medical treatment (as opposed to medical products) or computer programs are generally not patentable.</p>
</blockquote>
<p>...but <strong>are not patentable</strong> as they are aesthetic creations <strong>and</strong> computer programs.</p>
<h2>Conclusion</h2>
<p>As a result, you can under no circumstance patent a game or part of a game. You can not patent a game mechanic any more than you can patent the act of <em>selling cats for cash at the street corner while hanging from a hot air balloon singing Las Cookarachas and wearing a Guy-Fawkes mask</em>.</p>
