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March 04, 2007


Sean Barrett

Currently, they same to be the only way that people who do what we do - invent game mechanics - can get the same sort of protection that authors get from copyrights.

Copyrights do not protect ideas, copyrights protect specific expressions of those ideas. Mechanics patents would never cover specific expressions of ideas, they would cover a larger space: all expressions of the idea. Copyrights already cover specific expressions of a game mechanic.

Patents are a two-edged sword. They may protect the ideas you came up with first, but they prevent you from using your own ideas that somebody else came up with and patented first. (Except via cross-licensing schemes, which end up favoring the big companies at the expense of the little. Wouldn't it rock if publishers ended up owning all the patents and controlling what developers could do even more?)

The patent system was not created because people have a right to "ownership" of their ideas in the first place. It was created because of a perceived public benefit in motivating innovation. That motivation for innovation exists in the software industry independent of patents, and in the game industry, and in the area of game mechanics. Just because somebody else is going to rip off your new game mechanic a few years after you ship doesn't mean you don't pursue creating that game mechanic. The lack of patent protection didn't prevent Rex Bradford from inventing the power meter for Mean 18 in 1986.

There's no good reason to have patents in this area, period, regardless of the existence of 'bad' patents. Unfortunately patents exist in dumb areas because certain people profit from them: the patent office, patent lawyers, and patent holders. Their profit at the expense of a public benefit is frivolous and not what was intended by the constitutional clause enabling the patent system. By saying "boy I wish we had patents for X" you buy right into that system of personal profit in favor of hurting the public good.

Software is rather distinct from other media in having (a) significant, seemingly-patentable ideas that everyone builds on and (b) thriving free authorship. Patents totally stomp (b), whether (b) be open source, free casual flash games, etc. etc. Anyone can write a novel, and due to the lack patented media of type (a), they can write anything they want as long as they're not copying specific language or specific setting elements (in name; in-kind, with the serial numbers filed off, is fine). Nobody thinks there's anything wrong with that!

The equivalent of what you propose for game design in other media would be patenting plot elements, or even 'the wise old sage', 'the naive farm boy', or at least their relationship and how it develops over the story. That's just dumb.

I will be demoing my IGJ4 game prototype with (I think) some novel gameplay at the Experimental Gameplay Sessions at GDC this week. It is my understanding that Harmonix actually holds patents in this area (I forget now, targets coming down a track sync'd to music, or some such). Many innovations build on other people's innovations, and patents cut that off at the knees (except via licensing).

This totally sucks.

Jamie Fristrom

Saying 'game mechanics' was poor word choice on my part. I should have simply said 'game'.

And, thinking about it, I suppose given a choice between abolishing game patents entirely or keeping the system as it is now, I'd abolish. I'd still prefer reform, though.

The scenario I imagine, where patents may be currently useful, is - you show your prototype to some people. One of those people is an Evil Man who recognizes your game is Truly Fun And Would Sell but does not want you to get your share. You did the work coming up with something and proving its fun-ness; now they get all the benefit. This scenario is not totally far-fetched. There have been great games that did not sell well in their first incarnation that were then lifted almost verbatim, marketed better, and brought great income to the successor while the originator could just sit there and watch and say, "Hey..."

So, to me, that's just not fair. And whether patents were created to help increase the 'fairness' in the world or not doesn't matter, it's still what I'd like to see them used for.

Copyright is a little more powerful than you make it sound. If I took Harry Potter and moved him to New Jersey and gave him a different name - and the book was succesful - you can bet Scholastic would come after me and I (or my publishing company) would settle.

But if I take a game about building a spice harvesting operation on the planet Dune, and take all the Dune-related art out and replace it, with, say, medieval orcs and humans, copyright probably won't suffice, even though - let's face it - it's the same game. A patent, here, would work, however.

Double-edged sword? Unfortunately, that other edge of the sword is hanging over us whether we buy into the system or not. We can't just say, "I don't believe in patents - *I* never patented anything" to avoid a lawsuit.

On the Harmonix front - since you've already admitted in print that you may be infringing on their patents, there's no reason why you shouldn't contact those guys directly and see just how much it would cost to license those patents. They're good guys - now that they're owned by MTV there may be some red tape to cut through, but I imagine they'd give you the license for free + a small royalty off of net. So you'd only have to pay if you're succesful anyway. Not to mention, they're not going to come after you unless you're succesful, so you don't really have to worry until you're succesful. And being succesful is a good problem.

Sean Barrett

I'm not actually planning to pursue the development of this game idea anyway; it's just a throwaway; and if I were, I'm friends with several people at Harmonix. But it's moronic that if I weren't, I couldn't give away this (innovative) game for free!

As for Harry Potter, 'filing off the serial numbers' doesn't mean moving him to New Jersey, it means renaming him, renaming Hogwarts, renaming Voldemort, etc. You can certainly do that and get away with it legally.

Yes, it's the case that the other edge of the double-edged sword is around us as long as patents exist; it's not an argument for not getting patents, it's an argument for not having a patent system. The lack of a patent system is superior to a reformed patent system because of the double-edged sword. Because if patents are owned, then they can be owned by companies without products when other companies go out of business, which means cross-licensing is insufficient to prevent extortion. Because free games can't be released if there are patents in the way. Because indie game developers are overly-screwed by patents, which (despite general claims to the contrary) favor the big guy.

The patent system is problematic in two ways: (1) the idea of the system, (2) the execution of the system. Clearly 2 is deeply, deeply flawed, but I think it's a distraction from the reality that 1 is a horrible idea for the game industry and especially for games as art (in the sense that movies and novels are art).

Jamie Fristrom

As for Harry Potter, 'filing off the serial numbers' doesn't mean moving him to New Jersey, it means renaming him, renaming Hogwarts, renaming Voldemort, etc. You can certainly do that and get away with it legally.

No I can't. Scholastic will still come after me and probably win. If I simply have a preponderance of elements that are the same in my story and theirs (teeanage wizard, magical school, evil boss wizard, enchanted railroad, etc) then I'm in violation. I forget where I learned this - it might have been Nolo Press's "Software Development: A Legal Guide". But I also have a couple anecdotes to support it:

- My lawyer defended a guy who wrote a book and then got sued for copyright infringement. The guy had never read the book he allegedly infringed, but settled anyway.

- Lucasfilm suing *Battlestar Galactica* on the grounds that it was too much like *Star Wars*. They dropped the case not because it was groundless but because Universal countersued saying *Star Wars* was too much like *Silent Running*.

Of course, this just means copyright law is flawed too. In this case, I definitely would rather keep the system as is than abolish it altogether.

Great comments! I have refined my mental position.

Joel Martinez

not related to this post, but just noticed that Torpex was mentioned in Microsoft's press release as the first XBLA game written in XNA.


I hope we'll get to hear some anecdotes about your team's experience using XNA


For some reason, copyright doesn't cover game rules, only the specific words used to describe those rules (here in Canada anyway). So while you can't write a "new" novel by rewriting the plot of another novel in your own words, you can actually rewrite a game by copying the gameplay integrally but changing the look and feel a bit. I think this double standard is a bit silly.

I think copying the ideas of another game should be covered by copyright, not patents. Patents are for inventions, not artistic/purely creative ideas. It would make sense for the specific gameplay of games to be covered by copyright, as long as it's lax enough to allow similar -- but different -- games to be created. That is, to prevent total rip-off, but still allow inspiration from previous games.

It's a tough balance to get properly.

Nathan McKenzie

I actually wrote a very small Flash game / editorial cartoon on this general subject a month or so ago as part of a paper that a peer of mine and I put together...


(Make sure to play the game at least twice to see everything it has to offer)

I'm not going to say it's insightful, but at the very least it's topical.

Lowell Manners

"not related to this post, but just noticed that Torpex was mentioned in Microsoft's press release as the first XBLA game written in XNA."

Link please?

Nathan McKenzie

On the one hand, I do agree that some aspect of games rules, or maybe combination of game rules, ought to be protected somehow. I remember feeling pretty agitated when I discovered that many of Popcaps games are taken almost verbatim from other flash games, only with improved artwork and UI. That troubles me. I think Zuma in particular had some controversy.

On the other hand, though, are patents really the solution?

The thing is, you can't be guilty of copyright infringement unless it is proven that you explicitly copied someone else's work. Accidents aren't infringement. There's no such protection with patents.

Thus, here is a plausible situation (and the actual situation with software patents). I am currently building a number of game prototypes. With all modesty, I tend to be a fairly out-of-the-box kind of thinker - I'm always trying new odd ideas that seem interesting to me. Because of the way patents work, if I'm inclined towards trying out new, odd, innovative things, if I want to release anything I make to the public and I don't want to be in danger of being sued, I would need to peruse over the ENTIRETY of the game patent system collection (and software patent system too) to make sure that none of my new ideas are infringing. Unfortunately, because I'm not a lawyer, it's more likely that to be safe I would need to hire an IP lawyer to do that for me. And because patents tend to be ambiguous and fuzzy, the lawyer would almost certainly recommend that I remove technologies that are in gray areas, which would almost certainly be all of them. Also, such a task for a lawyer would be enormously time-consuming and expensive for me.

Thus, my only real solutions in such a case are 1) make sure I only do things that other people have done that were never patented, 2) make sure I am a giant corporation with my own enormous patent portfolio so that I can threaten World War 3 if I am sued, or 3) hold my techniques as close to my vest as is humanly possible so that no one knows I infringed. Unfortunately, number 3 is frequently much more possible with software patents than with UI or game mechanic techniques, which tend to be pretty front and center.

If my choices, as a small game maker, are to 1) risk having my ideas taken by giant companies or 2) risk being sued into oblivion for accidentally being creative in a way someone else apparently already was, I'd much, much rather go with option 1.

And don't get me started about the idea of game mechanic patent trolls...

If you find this topic interesting, you should try to track down some of the current debate in Europe about software patents (and whether they should be permissible). Slashdot and groklaw have had many volumes of stories about the general topic as it applies to these kinds of IPs. Look at Microsoft's current posturing at Linux, too, as a great example of this sort of thing.

I also put together a small Flash game / editorial about this topic a few months ago - it's a bit goofy, but what the hell:


Make sure you run it twice if you give it a go.

Joel Martinez

Here's one:


I know it sucks to have your ideas used but I really don't have sympathy for the team that makes a game using certain mechanics that doesn't sell and then seeing another team with similar mechanics have a hit.

Whether a game is a hit or not is not just about it's mechanics. Presentation, marketing, PR, distribution and even timing play into it in a big big way.

I'd like to here what specific game mechanics you think are novel enough to deserve patent protection.

* Using a directional controller to move a character around the screen in 3d?

* pushing a directional controlling to move the current selection on a UI?

* pressing a button to make the character jump where the longer the button is held the higher the character jumps?

* clicking on a character and then clicking somewhere on a map to direct a character to got there?

* pressing a button to have a projectile come out of a virutal projectile weapon?

* swinging from rope to rope to get around?

Do you really think you'd even be able to make games if those things were patented? Before you could even start you'd have to have a lawyer find all the people who hold all the patents to all the things you planned on using and then contact all of them and hope they are resonable in their licensing, unless of course you were EA and then you'd just threaten to counter enforce with all your patents.

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Jamie's Bragging Rights

  • Spider-Man 2
    The best superhero games of all time Game Informer
    Top five games of all time Yahtzee Croshaw
    Top five superhero games of all time MSNBC
    Top 100 PS2 games of all time Official Playstation 2 Magazine
    1001 Games You Must Play Before You Die Nomination for Excellence in Gameplay Engineering Academy of Interactive Arts & Sciences
  • Schizoid
    Penny Arcade PAX 10 Award
    Nominated for XBLA Best Original Game
    Nominated for XBLA Best Co-Op Game