The Designer's Notebook: Damn All Gameplay Patents!

Back in 2005 I wrote a Designer's Notebook column called "The End of Copyright," warning that copyright, as a property concept, is probably on its way out. It's a "right" that was invented out of nowhere after the invention of the printing press, and it will probably fade away some time in the next hundred years or so.

Or at least, the business model by which such innovations are exploited will change substantially, and making copies will no longer be considered wrong. (Oddly, I believe far more strongly in the European concept of moral rights than I do in copyright, but that's a story for another time.)

This time my ire is directed at gameplay patents. Patents are different from copyrights in important ways. They're a lot harder and more expensive to get (it often takes a year or more for one to be granted), and they don't last nearly as long. A copyright, under US law, lasts until the author's death plus 70 years, which means that an author's great-great-great grandchildren can still be raking in the bucks from a work they had no hand in creating.

For those created by a corporation, the term is 95 years from publication. By contrast, patents expire after 20 years... but even 20 years is a ridiculously long time in the video game industry. Furthermore, patents restrict any use of an idea, not just a particular expression of an idea as a copyright does. They grant much broader control over the invention.

To receive a patent in the United States, an invention must be new, useful, and non-obvious. A patent consists of a claim, or more than one, regarding an invention that the inventor wishes to protect. Usually a patent contains multiple claims for different possible variants of the invention.

For example, the Namco patent on load-time mini-games (US Patent Number 5,718,632), as originally used in the PlayStation 1 version of Ridge Racer, contains 16 claims, many of which are almost identical to one another. Each claim is a description of what was invented. The terms in this description are called the limitations of the claim -- that is, the boundaries of what is claimed.

Another device or process infringes a patent only when it contains every single limitation of one or more of the claims. If a single limitation of a claim is missing, that claim has not been infringed.

Unfortunately, however, most patents are written as broadly as possible, with large numbers of claims to cover various different ways of implementing the invention. This makes it difficult to avoid infringing a patent by making minor changes to the invention.

Unless you've been living in a cave, you already know that there are problems with patents these days. To take the most morally painful example, pharmaceutical companies depend heavily on patent protection to allow them to recoup the enormous costs of doing the research necessary to bring a new drug to market.

Without this protection they could not afford to do it. At the same time, Third World nations with severe epidemics do not have the resources to do their own research, nor the money to pay for patented drugs.

There are plenty of other issues as well. Among programmers, software patents are widely felt to violate the collaborative spirit of software development, and unlike pharmaceuticals, software doesn't require years of experimentation and animal testing to get right. Where would we be if C.A.R. Hoare had patented the quicksort algorithm?

Well, there are other sorting algorithms. But where would we be if everyone who invented a sorting algorithm, a hash function, or for that matter any other useful routine had patented it? A programmer might have to buy dozens of licenses just to write a moderately complex program. The entire computing revolution of the past forty years would have been strangled in the womb.

The patent question has been addressed on Gamasutra before. In May of 2005, two lawyers named Ross Dannenberg and Steve Chang wrote an article encouraging game developers to patent their innovations. Their piece generated many howls of protest from the development community, to which they replied with a letter to the editor defending their position.

For the most part, their response amounted to, "patents are here to stay, and anyone who is serious about business had better make use of them before his competitors do." This aggressive view is founded upon an assumption that patent legislation and US Patent and Trademark Office policy will not change. They may very well be wrong about that. Pressure is building on Congress for major patent reform.

By far the best Gamasutra article on the subject is David Sirlin's well-researched "The Trouble with Patents." He pointed out that judges have begun to allow a patent-holder to enforce a patent against a party which uses a different method to achieve the same effect. In other words, Amazon's infamous one-click patent could be enforced upon anyone who implements one-click buying, even by a different method.

This is profoundly wrong. Let's take another famous example from history. James Watt, as every history-of-technology geek knows, made a significant improvement to the steam engine. He patented his invention, which was reasonable as it was definitely innovative and non-obvious at the time. He then set up a company to exploit his patent and ran into a roadblock.

Watt wanted to convert the reciprocating motion of a piston into a rotational motion by means of a crank. Yet the crank, believe it or not, had been patented! This most simple of devices, which we use for winding down car windows and pedaling bicycles, was unavailable to him. Watt worked around the problem by inventing a sun-and-planet gear system which had the same effect, and in time he made a fortune.

But here's the kicker: if Judge Marsha J. Peckman had been involved, Watt could not have used his gear system either. Any new mechanism that converted reciprocating motion into rotational motion would have been prohibited by the patent on the crank. In other words, people are now getting away not only with patent-protecting a given solution to a problem, but preventing any other solution to the problem. It's as if they own the problem itself. That's how patents stifle innovation: no one is allowed to take an alternative, and possibly superior, approach to a problem.

That, however, is not my only reason for objecting to gameplay patents. I also object to them because they fall outside the intended purpose of the entire patent system. The U.S. Constitution authorizes the granting of patents in order to "promote the progress of science and useful arts." Gameplay isn't useful! It's entertainment. It is not intended to accomplish anything.

Video games are an art form, and art forms are not entitled to patent protection except in one limited area -- the design patent. A design patent protects the aesthetic appearance of an object, such as the Statue of Liberty (design patent D11,023) or the Coca-Cola bottle (D48,160). But a video game rule is not ornamentation, which is what design patents are for. Patenting gameplay is equivalent to patenting a type of sentence construction in novels or a verse form in poetry.

In Europe, the European Patent Convention deals with this. It states that "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" are not inventions and may not be patented. (Emphasis mine.)

In other words, gameplay patents, software patents, and so-called "business method" patents are explicitly prohibited among the signatories to the European Patent Convention.

(Business method patents are particularly egregious, as they are anti-competitive: if you find a superior way of routing memos around your office, you can prevent your competitors from doing the same thing even though it has nothing to do with the products you make. Business methods patents give businesses an entirely spurious and undeserved advantage that does nothing for the consumer.)

The US Patent and Trademark Office, unfortunately, has taken a much more vague approach to determining what may or may not be patented. Its guidelines for patent examiners requires that the invention produce a concrete, useful, and tangible result, and gameplay patents are being allowed.

I assert that the very definition of a game precludes its gameplay from constituting a concrete, useful, and tangible result. A game takes place in a pretended reality -- the magic circle. Its mechanics are not concrete, useful or tangible; they are make-believe.

We may choose to place a real-world significance on them, as when we bet on the outcome or give prizes to the winners. But this significance is arbitrary, because games themselves are arbitrary -- that's why they're games. The creator of the game can change the rules at any time.

In short, because they are arbitrary, game rules are not machines or processes for solving real-world problems.

They are not inventions at all in the normal sense of the word. They are imaginary systems. Unlike mathematical theorems (which cannot be patented), game rules don't even have to be coherent -- though obviously they should be for playability reasons.

Now, I'm OK with patents on game hardware so long as they meet the requirement of non-obviousness. The U.S. patent database contains hundreds of patents on mechanical amusement devices, some of which are very clever.

But I don't believe in patents on game control mechanisms that don't involve new hardware.

(What if someone had patented the mouse and keyboard mechanism for controlling a first-person avatar? Or the "lean" button that lets you lean out to peek around a corner?). And I definitely don't believe in patents on game rules or mechanics!

Just recently, indie developer Mousechief! patented a particular mechanic they used in their Independent Games Festival 2006 finalist, The Witch's Yarn. It has to do with the way the player interacts with a storytelling game, selecting from a list of nouns rather than the more familiar approach of selecting verbs as seen in LucasArts' SCUMM engine.

The patent is meant to be limited, so it doesn't include using items in the inventory or currently on the screen (which would almost certainly be found in prior art that would invalidate the patent).

Now, I like Keith Nemitz, the owner of Mousechief! He's clever and imaginative and I'm sure his heart is in the right place. His idea is an interesting new control mechanism, and I congratulate him for thinking of it. But I still feel that he shouldn't have patented it, nor should he try to enforce his patent.

Van Gogh's brushwork was interesting and new too, but I don't think Van Gogh should have been allowed to prevent anyone else from trying out the same thing. Art, like music, advances best when its practitioners all riff off one another's work.

If you're concerned that someone else might patent your idea and thereby prevent you from using it (especially in a product that you've already put time and money into developing), there's a simpler, and far cheaper solution: share your idea even before you ship, a trick called defensive publication. Tell the world about it. Publish it in an article.

After all, the point of the patent system is not to guarantee inventors a financial return, but to encourage them to reveal their secrets so that everyone will know about them and can use them after a certain amount of time has passed. By doing defensive publishing, you simply make that time now, and then nobody can prevent you from using your own invention -- even if it takes a couple of years for you to actually ship it.

The fact is, gameplay patents, especially on video games, aren't going to make anyone rich in and of themselves. A game is a hit for aesthetic and emotional reasons, not because it contains a brilliant new way of computing battle damage.

The only way a gameplay patent can make someone rich is by patent trolling -- waiting for some party to innocently infringe on the patent and then suing them. And that's not a way that I want to see this industry going. Our creativity is already under threat from enough directions without us terrorizing each other into mediocrity with the threat of lawsuits.

Damn all gameplay patents!