Ok, I’ve spent the better part of two evenings finishing the campaign mode in Halo 3, so it’s about time to come out of my self-induced Halo 3 fog. A colleague of mine and I were discussing about a month or so ago the fact that Linden Lab’s terms of service for Second Life are very prohibitive of patents and patent rights being enforced by SL residents. Well there is a fairly comprehensive post on Virtually Blind regarding the topic that I feel compelled to link to. It’s an interesting read. Enjoy.
Hey everyone, I was on vacation last week, so there were no new posts last week.
As for this week, in honor of Halo 3, there will be no post this week either (i.e., I expect to be too busy playing Halo 3 to be able to post this week….)
We’ll be back to our regularly scheduled programming next week.
If you’re looking for copies of patents, here are a few resources to help you out:
1) The USPTO web site. Great for getting text searchable copies
2) Google’s patent site. Great for searching patents and reviewing text searachable results
3) www.PatentMonkey.com. Free searching and PDF copies of patents.
4) www.PatentRetriever.com. Free searching and PDF copies of patents.
I recently wrote a short article regarding Film Sanitization, the practice of removing objectionable content from a movie without the copyright owner’s consent. Groups remove the sex, violence, nudity, language, drug use, etc., to create versions suitable for “families and children.” This raises various copyright issues, discussed in my article, which you can download and read here. The initial conclusion is that those who sanitize films without the copyright owner’s consent do so at their own risk.
Similar issues could very well arise with respect to video games, except that it’s harder to remove just the objectionable content from a video game without the help and assistance of the game’s developer, as evidenced by the “Hot Coffee” exploit for Grand Theft Auto: San Andreas. In any event, some issues to ponder, and you might just find the attached article an interesting, if brief, read.
People often ask the same introductory questions when they first start seeking patent advice and counsel, and are often concerned about getting billed for the attorney’s time just to learn the answers to a few basic questions. I typically don’t bill for such initial consultations and introductory questions (I say “typically” because, as attorneys, we usually don’t make absolute statements… 😉
The proof is in the pudding, right? So we have started a new feature here at the Patent Arcade: Patent FAQs. The Patent FAQs should answer your initial questions to help you decide whether to consult a patent attorney or not. If you have a questions that’s not on the list, then send us an email and we’ll endeavor to add it.
Have a question that is not covered here? Send us an email, and we’ll endeavor to keep this FAQ updated. Keep in mind that this is not legal advice, as each scenario factually differs. Always discuss your specific situation with your own attorney. You can reach us at info (at) patentarcade (dot) com with further questions.
I think I invented something and I’d like to patent it. What do I do now? Talk to a patent attorney. Before you make any public uses or disclosures of your invention, before you offer it for sale to anyone, and before you publish anything describing your invention, talk to a patent attorney, as each of these actions can have a negative impact on the patentability of your invention. If you’ve already done one of these things, it is even more imperative that you talk to a patent attorney to determine whether you still have rights to your invention, because there is only a 1 year grace period in the United States to file your patent application after you’ve done one of those things. What will a patent attorney do for me? A patent attorney will discuss the legal requirements that must be met before the United States Patent & Trademark Office (USPTO) will grant you a patent, and will also discuss your invention with you to learn about the invention so that he or she can draft a patent application and file the patent application on your behalf in the USPTO. A patent attorney may also assist with a “prior art” search, where previous patents and other documents are search to see if anyone has already created the same or a similar invention as you.
My invention is complicated. Will an attorney be able to understand it? In order to practice patent law, patent attorneys must pass a special Patent Bar exam administered by the USPTO. In order to be eligible to take the Patent Bar, an attorney must have a scientific, engineering, or computer science degree. In addition to having a technical undergraduate degress, many patent attorneys worked in industry for before going back to law school. For example, Ross Dannenberg was an Information Systems Manager for Carnival Cruise Lines for two and a half years after getting his bachelor’s degree in computer science before going back to law school.
Should I do anything to prepare to meet with the patent attorney? What level of detail and information will a patent attorney need? A patent must describe an invention with enough detail so that someone of “ordinary skill in the art,” after reading the patent, can make and use the invention. You will therefore need to provide enough detail as if you were describing your invention to a competent person in your own field of work. A patent must also describe the “best mode” contemplated by the inventor of making and using the invention, so make note of any special tricks or modifications that need to be performed or made in order to get the invention to work best. The more of these types of details you can gather ahead of time, the more efficient the patent drafting process will go. I’ve seen a patent before, and it had a bunch of drawings. Where do those come from? Ideally, from you. While your patent attorney may refine the drawings and add additional drawings to help describe and illustrate your invention, you (the inventor) are in the best position to create rough (napkin) sketches or drafts of diagrams, flow charts, data flow, schematics, etc. There are a bunch of numbered sentences at the end of a patent. What are those? The numbered sentences at the end of the patent are the claims. Claims are required to be only one sentence, regardless of length, so they can be a little confusing. However, the claims are the “legalese” that define the boundaries of your invention, and specify what it is that others are not allowed to do. So if anyone performs every element of at least one claim in your patent, then that person infringes your patent. Who writes the claims? Given their importance in determining infringement of the patent, the claims should be drafted by a patent attorney. Minor variations to claim language can seriously affect the enforceability and scope of the claims, so anyone other than a patent attorney is discouraged from writing their own claims so that they don’t inadvertently give up some patent rights. Inventors are encouraged to discuss what they consider necessary and inventive aspects of their invention with their patent attorney, and then the patent attorney will craft and tailor the claims to maximize your scope of protection. This sounds expensive. How much will preparation of the patent application cost? Keep in mind that a patent is property and, like any other property, is an investment. Most attorneys bill by the hour, or some fraction thereof. The amount of time it takes to prepare a patent application naturally depends on the complexity of the invention, the level of detail provided, preparation by the inventor, and the number of claims required to adequately protect the invention, among other factors. Patent applications can cost $5,000 to $20,000 or more in attorneys’ fees to prepare and file, depending on a variety of these factors. An “average” complexity application is usually in the $10,000 – $15,000 range. Additional fees may be charged if a professional draftsman has to prepare drawings from the inventor’s or attorney’s sketches, typically under $1,000. There are also filing fees when you file the application in the USPTO. How much does filing cost? The USPTO charges various filing fees based on whether the applicant is considered a small or large business entity, and also based on the number of claims in the application. For a large business entity, filing fees about $1000 + extra claims fees if your application concludes with more than an allotted number of claims. For a small business entity, filing fees are about $500 + extra claims fees. A full schedule of fees is maintained by the USPTO.Sounds like I can save money by doing this myself, right?Some inventors do prepare their own patent applications and file them in the USPTO themselves. This is known as representing yourself “pro se”. However, even though inventors CAN represent themselves does not necessarily mean it’s a good idea. Patents prosecuted pro se are often difficult to enforce against infringers because of various problems, mistakes, or oversights made during prosecution, e.g., drafting the claims too narrowly, drafting the claims so that no single legal entity can infringe them, not describing the invention in enough detail to satisfy the enablement and best mode requirements, etc.
We recognize that many small businesses and startups are on a budget, and we try to work with each client within their financial means, but there is a threshold minimum amount of money it takes to properly prepare a patent application. One way that some of our clients save money is by preparing the first draft of the “Detailed Description” that goes in the patent application. The Detailed Description is where you describe how to make and use your invention with enough detail so that someone of ordinary skill in the art could build the invention without undue experimentation. Think of the Detailed Description as a document that, if you had to hand it off to someone else, that other person could make and use the invention based on the Detailed Description without having to come back and ask you ANY questions. In fact, when preparing the Detailed Description, assume that the person you hand it off it is not even allowed to ask you any questions or get any clarifications. That should put you in the right mindset if you do decide to prepare the document yourself.
How does the USPTO determine if my invention is patentable? An invention is patentable if it is new, useful, and nonobvious. A patent examiner will be assigned to your case, and that person will search for “prior art” such as previous patents, publications, white papers, journals, magazines, known products, etc., to determine if your invention is patentable. The patent examiner will analyze the prior art to determine whether anyone else has already invented the same thing (i.e., your invention is not new), or if your invention is a specifically suggested combination of things that have been done before (i.e., your invention is obvious). The USPTO will provide a written report, referred to as an Office Action, that details its reasoning for why or why not you should receive a patent for your invention. How long will it take to receive an Office Action? What happens next? Application pendency varies, but the USPTO is notoriously backlogged. Expect to wait at least 2-3 years for the USPTO to send a first Office Action. When you (or your patent attorney) does receive an Office Action, your patent attorney will analyze the arguments made by the USPTO, discuss them with you, and then craft written arguments and or claim amendments in response to the Office Action. This is the other major cost associated with obtaining a patent, and can cost $2,000 – $4,000 or more to respond to complex Office Actions. The USPTO has determined my invention is patentable… now what? When you receive a Notice of Allowance from the USPTO, you have three months to pay the Publication and Issue Fees ($1,700 as of this writing). It will then take the USPTO 2-4 months to assign a patent number to you and publish the patent. The USPTO has determined my invention is not patentable. Do I have any other options? You can always appeal a rejection by the USPTO. The first step is to appeal the examiner’s decision within the USPTO to the Board of Patent Appeals & Interferences (BPAI). If the BPAI agrees with the examiner, then you can appeal further to the federal courts of the United States.
Ok folks, the technical difficulties appear to be resolved (for now, at least). Sorry to anyone who had trouble with the RSS feed in the meantime…
Hey everyone. Sorry we’ve been radio silent for a while. We’ve been having technical difficulties with our hosting service, and its taken some time to pinpoint the problem. We’ve identified the problem, and have come up with a band-aid, but we are still working to resolve the root of the problem. Please bear with us…
Still trying to wrap your head around intellectual property? The following video game IP resources are provided for your use. Please keep in mind that all articles and publications are for informational purposes only, and are not intended as legal advice. Always consult an attorney with fact-specific questions if you have a specific scenario you need assistance with. Ross Dannenberg can be reached at (202) 824-3153, or rdannenberg bannerwitcoff com, and Steve Chang can be reached at (202) 824-3154, or schang bannerwitcoff com if you would like to discuss a specific issue or need legal advice.
- The American Bar Association’s Legal Guide to Video Game Development, Ross Dannenberg (Editor and Principal Author), available for purchase at the ABA web store. Contributors include Shawn Gorman, Andy Mu, and Rajit Kapur.
- Computer Games and Virtual Worlds: A New Frontier of Intellectual Property Law (available for purchase from the American Bar Association web site), with editing and contributions by Ross Dannenberg and Steve Chang.
- IP Rights in Virtual Worlds, by Ross Dannenberg
- Hey, That’s MY Game! IP Protection for Video Games, by Ross Dannenberg & Steve Chang
- Film Sanitization, by Ross Dannenberg
- The Vital Role of Patent Law in the Gaming Industry, by Steve Chang
- Top Ten [types of] Video Game Patents, by Ross Dannenberg & Steve Chang
- Copyright Preregistration of Video Games, by Marc Cooperman & Michael Krashin
- Patent Mythconceptions, by Ross Dannenberg & Steve Chang
- Preserving Patent Rights, by Ross Dannenberg
- IP Primer, by Ross Dannenberg & Jordan Bodner
TOP TEN VIDEO GAME PATENTS
by Ross Dannenberg & Steve Chang
When the editors at Gamasutra asked us to prepare a list of the top ten video game patents, we initially thought “Hey, no problem, that will be easy.” As we’ve dug into this in a little more detail, we realized that what we signed up for was no easy task, because there are quite a few issues that make it difficult to simply whip up a list of the top 10 video game patents.
First, what makes a patent a video game patent? Is it a video game patent if it describes video game play methods? What about hardware? Audio/video processing techniques? There are endless patents that may be utilized in some form or another when playing a video game.
Second, what determines whether a patent is a good patent or a bad patent? Its coolness factor? Financial worth? Something else entirely?
Third, how do you compare patents that cover completely disparate technologies from completely different times? How do you compare the original Pong patent with a patent for giving “kudos” based on driving style? The coup de grace then is this: how do you rank patents that each derive merit from a different one of these metrics?
The fact of the matter is you can’t, because there are many ways in which patents can be valuable. Some patents are widely licensed and bring lots of licensing revenue to its owners; other patents introduce a key technological advance that becomes an industry standard; and other patents possess a certain je ne sais quoi, the “IT” factor of a really neat idea.
Needless to say, given these complexities, this list is fairly subjective, and we would be blown away if no one disagreed with us…
As you may recall, Sony lost a lawsuit for millions of dollars to Immersion regarding Sony’s use of vibration technology in its PlayStation 2 controllers. Sony subsequently announced that the PlayStation 3 would use motion sensing controllers instead of vibration controllers. Sony appears to be taking the matter seriously, and has at least one patent application pending on its motion sensing technology, United States Publication No. 2006/0267935, entitled “Remote input device.” The application was filed May 27, 2005, and recently published on November 30, 2006. The application still has to be vetted by the United States Patent and Trademark Office before a patent will issue, but its a good sign of the direction that Sony is headed.
(Last Updated August 2, 2011)
We will endeavor to track and inform our readers regarding United States Patents (and various interesting foreign patents) directed to video games. Yes, we realize that there are endless patents that could be applied to video games if you squint your eyes and look through frosted glass, but we are going to concentrate on patents that are squarely directed (ok, mostly square) to game play methods and interesting aspects of video games. Examples of things we will NOT comment on include graphics rendering techniques, audio/video compression, hardware (most of the time), and other behind-the-scenes aspects of video games. That having been said, here is our initial list of video game pantents, which we will continually update and elaborate on.
Click on a link to read more about a patent. We’ll get to them all eventually.
UI= User Interaction
RPG= Role Play Game
FPS= First Person Shooter
MVG= Multiplayer Video Game
If you know of any patents that should be included on this list, please let us know!
Sorry for the radio silence, folks. I am pleased to report that we are continuing our efforts to update our listing of video game cases, and that case summaries for all cases are being prepared as I write this. Case summaries will trickle out as they are ready, and I will try to post them at least once per week. Thanks for hanging in there.
Well I have been a little slack about posting over the holidays. Hasn’t been much news or developments to keep up with in the past month, anyway. To start off the new year we are beginning development of a new Patent Arcade logo. Look for it soon, errr, eventually. If you have any ideas to suggest, let me know.
Gamasutra has posted the responses to their Question of the Week, which they posed in conjunction with our article “It’s Just A Game Right? Top Mythconceptions On Patent Protection Of Video Games.” The responses ranged from the mildy supportive to the outright negative. Steve and I also sent a letter to the Editor of Gamasutra. Our kudos, however, go to Erin Mehlos, who drew the following cartoon to run with the Question of the Week Responses:
We’re experiementing with new web site templates, so please bear with us as we undergo renovations…
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As you may (or may not) be aware, there are well over 30 major cases that deal with intellectual property protection of video games, and that’s just patents and copyrights. We have dissected these cases and, over the next few months, will be publishing an analysis of each case. New case analysis posts will be up every Tuesday, and the title will begin with “Case:”. You can also subscribe to our Atom/RSS site feed for automatic updates.
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