• The Other Side to Video Game Patents

    With Sega's recent lawsuit against Level 5 involving patent infringement there's been some debate amongst the gaming community regarding the validity of Intellectual Property(IP) law. Every so often the media picks up on a particularly high profile case such as this and when the patents are particularly broad it can cast an unfavourable light on such behaviour, particularly with the modern contentiousness of patenting software.

    But let's take a moment here - most business goes on behind closed doors, away from the internet and the bloggers. In reality very few of the people outside of a modern technology company have a truly accurate view of the state within, particularly with regards their motivations behind publicly visible actions and press statements. There can also be constraints placed on a development house from all manner of external bodies and factors, which at times can prevent them from explaining to the public why they are being forced to take certain actions. Bear in mind also that the technology media are no different to the traditional news press, only the most salacious events are picked up for coverage, the ones most likely to provoke a reaction or engagement from their readership. And always remember the purpose of any professional website is to grow readership numbers and keep them coming back. As such they will pick and choose which stories to run based on what will fit with the current mindset of their readership. That's not a judgement, it's just the way things work if you want to stay in business. The culmination of this is that for most people, they have a limited and skewed view rather than the complete picture. The reality is that there are many disputes which are both reasonable and which are settled out of court.

    Some genres are more reliant on unique gameplay hooks than art and audio assets for their appeal. In such cases patents can provide a useful form of protection for the titles' creators.
    Some genres are more reliant on unique gameplay hooks than art and audio assets for their appeal. In such cases patents can provide a useful form of protection for the titles' creators.
    Now when it comes to IP protection some people think that it stifles innovation and creativity. Keep in mind that no system is perfect and whatever is put in place will always be abused - some innocent people will always go to jail, some guilty people will always walk free. All we can hope to achieve with any legal system is a middle ground that works for the majority. As such I would put forward the point that while, yes, there can be some instances where the legal system hurts the consumer by curtailing certain releases, without it we wouldn't have much of an industry left and certainly not one with many developers still based in the Western world.

    It's first worth pointing out a few basics with regards the legal system:

    • Trademarks are used to protect your name and must be unambiguous within your industry; they prevent dubious companies from trading on your hard work by misleading the consumer as to the creator of a product. This clearly has the consumer's own good in mind as it prevents confusion and allows the developers and publishers to exercise quality control in maintaining their relationship with the public.
    • Copyright only covers the expression of an idea, in the case of a game that's the art assets and audio for example. Copyright does not in any way, shape or form prevent someone from making a clone or knock off of your title, but it does prevent them just stealing all your assets and plugging them into their game.
    • Patents cover a functional idea. There's all kinds of rules in place to prevent patents being used retroactively for money grab actions and their purpose is to recognise and protect the investment that goes into experimental research and development. This kind of work is expensive in any sector and without patents it becomes very hard for any company to invest significantly in such activities, when a competitor can just rip it off from them and benefit financially without any of the costs associated with its development. When applying for a patent you are required to prove that your creation is both innovative and technically accomplished. As with Trademarks and Copyright there are time limits associated with Patents ensuring you only have a limited window in which to profit from an invention, and the costs to keep it active increase as the years go by.


    Patents can also be an important form of defense against the predatory behaviour of cloneware companies.
    Patents can also be an important form of defense against the predatory behaviour of cloneware companies.
    While big companies fighting each other can give an impression that such legal trappings are purely the preserve of greedy corporations trying to make an easy buck, that's fundamentally missing their real purpose - which is to recognise and reward innovation and give backing towards small to medium sized businesses. Bringing this back to the remit of the games industry, it can take a very long time to craft an intricate, well balanced release. Often a title's entire appeal can depend on a single gameplay hook or mechanic that is unique within that industry. Without the ability to patent such an invention you open the gate to scores of copycats and clones to rip off that game design without bringing anything new to the table themselves, profiteering on the hard work of others. Some genres are obviously more liable to this than others - while a significant appeal of a racing title may lie in its graphics and frame rate which can't be cloned in such a way, most puzzle games rely almost entirely on game design elements which can be. Indeed in this day and age some companies exist solely producing content on this remit, able to churn out such cloned software in an extremely rapid time frame.

    In an industry where many of the most innovative and bold ideas are coming out of smaller studios, where development of titles can take a significant time investment and profitability is always a fine line, being targeted by a cloneware company can sink you. Not only that but in a world where you can now get an equally skilled work force in booming economies such as India and China, for significantly less costs than running a comparable team in Europe or North America, it's possible for companies to throw large amounts of man power behind clone projects, expediting their time to market. In this kind of environment the traditional competitive advantage of being first to market with an idea vanishes, as such copy products can be turned round before the original creators can exploit their original concept sufficiently to turn a profit. Patents aren't just about protecting big business, they are also about protecting the little man with a great idea from being exploited by larger organisations who have greater man power and advertising budgets. If you don't protect these people and reward their innovation you merely perpetuate the cycle of gaming being dominated by a few, large companies and stifle the diversity and inventiveness of the industry as a whole.

    Both require skill, ingenuity and a great deal of monetary and time investment to create. Why should one business not have the same rights as the other when software creation is just as important a lynchpin of modern economies as manufacturing design?
    Both require skill, ingenuity and a great deal of monetary and time investment to create. Why should one business not have the same rights as the other when software creation is just as important a lynchpin of modern economies as manufacturing design?
    Some companies further attract bad press by using their legal teams to target free releases where the creators have released their titles with no revenue model. This is, however, not a victimless crime, because it devalues the commercial product on which it infringes. If the consumer can get a free clone many would then not pay for a commercial release and that hurts sales, and even if they would still pay it erodes the perceived value of said titles and the market price. This can then make future development by the rights holder economically unviable and the end result is less developers able to pay their mortgages as follow up games get reduced budgets due in accordance to the lower revenue potential. It's like counterfeiting, technically the counterfeiter isn't actually taking anything from anyone but they do succeed in reducing the market value across the board, which if left unchecked cripples society. If the world was full of free, unregulated efforts infringing on popular properties it becomes much more difficult for the industry to make money, and that's the kind of thing that can lead to a market crash. As such a sustainable industry requires the ability for IP owners to defend their property against all infringements, just because some people can afford to give their time and skills away for free does not mean everyone is in such a fortunate economic situation.

    Just because something is made from lines of code rather than physical cogs and dials doesn't mean that its creation and design requires any less skill, financial investment, innovation or intelligence to create. Indeed some of the UK's biggest success stories have operations that deal solely on the sale and export of Intellectual Property, selling designs to other companies to incorporate into their products and manufacturing.

    It was Symbian back in 2008 that won its pioneering case and was awarded the first software patent within the UK, opening up a more affordable avenue for many UK businesses.
    It was Symbian back in 2008 that won its pioneering case and was awarded the first software patent within the UK, opening up a more affordable avenue for many UK businesses.
    For gaming to have a healthy future there has to be a sustainable revenue model able to keep a large number of engineers off the poverty line. If you want an industry filled with rich gameplay ideas and mechanics rather than just ever-increasing graphical fidelity then those ideas need to be protected as strongly as the graphical assets. And that is what patents are for.

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