Navigating Game Patents: How Old Mechanics Can Still Cause New Problems

The Threat of Overly Broad Game Patents

The video game industry has dealt with the issue of overly broad patents on game mechanics and design concepts for decades. Large companies will often patent abstract game ideas that are excessively wide in scope, with the rights to basic gameplay formats and genres wrapped up in their portfolios. This poses a risk for smaller independent developers, who can find themselves threatened with lawsuits and lengthy legal battles over building games around universal ideas.

For example, in 2012 indie developer Zach Gage received a cease and desist letter accusing his spell-casting game SpellTower of infringing on an existing patent from 1989. The disputed patent covered the concept of eliminating letter tiles in a grid-based game, which was deemed too broad and abstract by many observers. Despite the patent being vague and arguably invalid, defending against it would have ruined Gage financially. He ended up having to substantially change SpellTower’s core mechanics to resolve the dispute.

This case echoed an earlier 2008 lawsuit in which global developer Namco sued small startup Demiurge Studios over their use of weapon-switching in an action RPG. Namco claimed ownership over the general idea due to a patent they held. Most saw this as an absurd overreach, attempting to control an essential aspect of an entire genre. Yet Demiurge was still forced to arrive at a licensing settlement due to lacking the resources for a legal defense.

While public awareness and scrutiny over such practices has increased, there remains an attitude of acceptance that companies will utilize patents this way to stifle competition. Larger industry players still regularly gain patents on overly-broad game concepts, knowing that their extensive lawyers and patent war chests provide them an inherent advantage over less-resourced developers when enforcing these monopolies. And there has been little momentum within the US legal system to shift just what sorts of game design ideas can be patented.

Strategies to Avoid Infringement

For indie studios and individual developers, overcoming vague game patents requires careful planning and risk analysis at every step in the design process. Here are some key strategies to avoid accidental infringement on existing interactive entertainment patents:

• Research patents early when conceptualizing core mechanics – Study filed patents while your game is still in the prototype phase. Identify any conflicts with central design aspects and gameplay loops you are exploring so there is time to pivot.
• Focus on specific implementations over general mechanics – Build out tightly defined, well documented cases of each game mechanic instead of wide abstract systems. You are less likely to collide with previous art when your implementations are highly detailed and individualized.
• Seek legal advice around high-risk concepts – If your game centers on a mechanic that seems potentially patented by another company, consult a lawyer specializing in this area. Have them assess your infringement risks and recommend adjustments to problematic elements.
• Utilize clean-room design with thorough documentation – Construct core mechanics in isolation with team members intentionally avoiding other games utilizing similar ideas. And keep extensive notes tracking your development, so you can demonstrate independent creation if ever challenged legally.

No single strategy will provide complete protection in this area, given just how broadly game patents continue to be granted. But combining diligent awareness of the patent landscape throughout development with carefully scoped implementations built fully in-house offers the best insurance against predatory infringement allegations.

When Mechanics Reemerge in New Contexts

While extensive research and tightly constructed mechanics help developers design around existing interactive entertainment patents, issues still arise when basic design concepts get re-patented for use in new technological contexts down the road. As platforms and input methods evolve, familiar old game ideas often form the basis for novel experiences tailored to emerging mediums. But questionable re-patenting of core mechanics for these settings draws less scrutiny.

For example, classic arcade game mechanics requiring rapid alternating button presses were patented for touchscreen devices in the early 2000s after the popularization of smartphones and tablets. Despite similar timed pressing mechanics existing in arcade cabinet games since the 1980s, the addition of a touch interface allowed core design concepts around precision and rhythm to be re-patented. This has led to mobile developers facing licensing demands and legal threats for including established mechanics like timed button mashing in their games.

Part of what enables the re-patenting of such abstract ideas in new contexts is a lack of accessible databases clearly documenting extensive prior art across game genres, formats, and decades of design iteration. Examiners lack the complete picture of how foundational certain mechanics are. And smaller developers typically cannot afford the complex process of proving substantial precedent around conceptual gameplay routines that have simply shifted presentation to match current technology.

For example, when mobile developer Peak Games was sued by Gree over their title Toy Blast allegedly containing patented capsule toy mechanics, Peak Games was only able to have the case dismissed by partnering with an extensive prior art search firm. This required substantial financial resources the average developer lacks. Without parity in ability to highlight precedents, core mechanics can be temporarily privatized through patents despite clearly established history.

Possible Ways Forward

For the unhealthy chilling effects of overbroad video game patents to substantially lessen, there need to be shifts in both the patent approval process itself as well as in how disputed patents are challenged in court. And while sweeping policy changes seem unlikely in the short term, there are still avenues developers can pursue in rebalancing this inequitable status quo:

• Advocate for higher quality standards in software patents – File detailed feedback with the USPTO when you identify approved interactive entertainment patents that fail to meet boundaries of novelty and non-obviousness, requesting additional evaluator training in this domain.
• Fight patents you view as invalid in court – Consider teaming with trade organizations to invalidate particularly egregious existing game mechanics patents by proving substantial instances of prior art.
• Lobby politicians around reforms in software patent laws – Join or form groups focused on highlighting problems around vague software and game design patents to lawmakers most engaged with intellectual property policy.
• Build open databases of documented game mechanics – Contribute detailed breakdowns of common gameplay systems, mechanics, and loops to collaborative sites accelerating more comprehensive prior art searches.

Until substantive reforms emerge, developers must take responsibility both individually and collectively in pushing back against the broken elements of this system wherever feasible. Only coordinated effort and mobilization can shift the balance away from established players being able to claim overly broad monopoly rights that stifle innovation in this space.