How to protect your game IP and whether patenting a viable strategy in the games industry?

Game IPs are more popular than ever and protecting the distinctive features of a game has never been more important. The challenge in protecting specific IP assets within a video game is that games are more complex compared to traditional copyright-protected works as they represent a combination of many different elements, such as computer programs, literary works, designs, artistic performances, music, audiovisual content, and trademarks.

All this can be protected but due to the complexity of video games and the fact that companies’ available resources vary, there is no one-size-fits-all solution. Various forms of intellectual property protection, such as copyright, trademarks, and patents, each have their own distinct criteria for eligibility, advantages in terms of protection and enforcement, and limitations in terms of what they can protect and for how long. Therefore, when it comes to safeguarding a video game’s intellectual property, each developer needs to assess which methods are the most suitable for protecting its IPs.

Nintendo’s patent route

Nintendo has selected a non-traditional route in protecting its IPs and stands out for the volume of its patents in the games industry where patents are not very common.

Many of Nintendo’s patents concern its innovative gadgets and their technique and features, such as the Nintendo Wii remote controller.  However, a large portion of Nintendo’s more recently filed patents are related to technology used in the latest Zelda game, Tears of the Kingdom. In the period between July 10 and August 4, 2023, Nintendo filed a total of 32 patents, 31 of which were related to Tears of the Kingdom. The most interesting ones of these patent applications concern specific game mechanics, player character’s abilities and loading screens. For example, the main character Link’s abilities that allow Link to interact with the world around him, such as riding on top of a moving vehicle, the mechanics that determine how Link can use his ultrahand ability, and the game’s loading sequences that pop up when a player uses fast travel to send Link to another location and the image of the starting point map changes to a map of the destination during the fast travel sequence.

Some of these mechanics may be too general or abstract to be patented. For example, the solution that makes the game judge when Link is contacting a movable object underneath him, and if the object moves, Link will automatically move in the same way and speed as the object does, without any input being made.  At first glance, this sounds like basic physics but there might be a unique point in it. The mechanic is designed to work without any physics, such as frictional force, between Link and the moving object. In other words, when Link is on top of a moving object, the movement of the object is automatically added to Link’s movement. Since an invention must be new for it to be patentable, according to Nintendo’s patent application, no similar mechanics exist yet.

What can be patented and what not?

A patent allows the protection of a product or process providing a new technical solution to a given technical problem. Case law does not provide a specific definition as to what is and what is not patentable in a video game. A significant obstacle in obtaining patents related to video games in Europe lies in meeting the European Patent Office’s (EPO) requirements of “technical character” and an “inventive step.” According to EPO guidelines, an invention must possess a technical character to qualify for patent protection.  Therefore, to overcome the inventive step requirement of the EPO, it is important to list the technical features of the solution and describe how these inventions relate to gameplay in detail. The EPO’s requirements also mean that narrative, character design, and other artistic work are not patentable as they inherently lack the necessary technical character.

Looking at examples of successful patents gives some idea of what can be patented and what not. For example, Namco filed a patent in 1995 that prevented other companies from using a certain technical solution that made it possible to place playable mini-games on games’ loading screens until 2015 when the patent expired. Another famous patent is Konami’s patent concerning some key features of a two-player football game. Konami was able to patent the solution behind the indicator marks that help players direct the ball to one another and also indicate the location of the ball when it has been kicked outside the visible area of play. Konami’s patent application was first denied by the European Patent Office’s examining division. However, Konami appealed to the Technical Board of Appeal which granted the patent in 2006.

Conclusions

Because of the difficulties involved in acquiring a patent and the cost, it is perhaps not a developer’s primary tool to protect its games, especially for a small and mid-size game developer, but something to consider if there are specific technical features in a game that impact gameplay. Although, there are famous examples of successful patents that have prevented other companies from using a particular innovation, focusing on copyrights and trademarks can provide more accessible means of protecting intellectual property rights, especially for small and medium-sized game developers.

Here is how to protect your game IPs:

Use Copyrights

Copyright automatically protects your game’s source code, artwork, sound effects/music, storyline, and other artistic work from the moment you create your work without the need to go through any formal application process. Keep good records of your development process and advise others that you are the author of the work for example by attaching a copyright notice to your work – such as the “all rights reserved” text, or the © symbol – together with the year the work was created.

Register trademarks

Register trademarks for your game title, logo, and any unique symbols associated with your game. Trademarks help protect your brand assets and prevent others from using confusingly similar marks.

Use IP clauses

Make sure your employee and consultancy agreements contain appropriate IP provisions to ensure that your company will own the copyright to developed work.

Protect trade secrets and use non-disclosure agreements (NDAs)

Keep certain aspects of your business and game that are not protected by other intellectual property protection methods, such as contract terms, business partners, and information on game development, confidential as trade secrets. Use NDAs before entering into confidential discussions with potential business partners and confidentiality clauses to protect and limit access to sensitive information on a need-to-know basis.

Terms of Service (“ToS”) and End User License Agreements (“EULA”)

Include provisions in your game’s terms of service and EULA that define how users may use your game and prohibit unauthorized activities, such as reverse-engineering or modifying the game. With the ongoing AI boom, also consider expressly prohibiting any data mining, robots or similar data gathering or extraction methods to prohibit screen scraping or web crawling, which can be relevant to the training of AI models.

Patents

Patents can apply to computer-related inventions involving software, for example, tool kits, such as game engines and development tools, on which games are built, as well as specific technical features in a game that impact gameplay. Consider patenting if you have a new technical solution to a certain technical problem.

Monitor and enforce

Regularly monitor marketplaces, online platforms, and social media for unauthorized use or infringement of your IP rights. Take prompt action to enforce your rights through cease-and-desist letters, DMCA takedown notices, or legal action if necessary, or enter into licensing agreements with third parties to authorize the use of your IP in exchange for royalties or other forms of compensation.

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