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Odie76

Game Design, Patents & IP

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I am a student of electrical engineering and information technology from Gothenburg, Sweden working on a thesis on the subject of Game Design, patents and IP. The team that I am currently working with has, through previous research (http://civ.idc.cs.chalmers.se/projects/gamepatterns), concluded that IP-issues is something that can severely inhibit creativity when working on a project. A slightly political view perhaps, but even though the problems can usually be worked around, it would make matters easier if these issues could be dealt with (anticipated and categorized) at an early stage. At this point I would like to reach out to all of you who have hands-on experience of game development (but of course, anyone with an opinion is welcome to share it). How have these “problems” been handled in the projects you have been involved in? What are the main legal concerns of game developers today and have they changed with time? Some people say the game industry has become stagnant and developers are running out of (good) ideas. Could this instigate a more fierce behaviour in the industry when it comes to protecting ideas and designs? Is there a point at all in protecting a product with (in most cases anyway) such an “extreme” relationship between production costs, production time and product life cycle? Do you know of any current cases where patent law has been enforced? If you for some reason do not feel like making any statements in public, please contact me at it1daol@ituniv.se

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There are significant costs in filing a patent, let alone the costs of enforcing it in court. Around US $20,000 is not excessive for a single filing. Given the state of the gaming industry (more than 90% of games don't make it to break-even point), each $ invested must end up in making the game and not on protecting the technology. IP of the game contents (characters, storyline, graphics & sounds) is another story. Most studios license outside IP and that is part of the contract with the publisher. A few have developped IP on their own, but again, this is 'protected' explicitely by contract or copyright. Most game companies have a young staff uneducated about IP issues; it's not unusual to find cut&paste'd code from an article. Although the probability to find patented code in games is pretty high, I've yet to find a case where a game company got sued over a patent issue. There are a few cases on stolen IP, though. The fact the Mickey Mouse is off the 'forever' copyright clause (according to recent modifications to the US copyright act) is indeed an issue for Disney; but I've yet to find a patent on 'The Little Mermaid'...

I've been working for a few CG tools companies that sell software to game makers. Those products have a longer development cycle and companies are more keen to filing patents as a normal business process. This industry is based on an overabundance of cheap tools and limited markets, thus the fierce competition; patents are a tool of choice in protecting a leading technology and are more used for barter. I've been involved in many patent evaluations and a few actual court cases, and the battles are pretty ugly. Developpers in those companies have a better idea of what's patented and what's not, and what ideas are patentable. Where I worked there were a few developpers who had direct contact with the corporate lawyers and information was flowing between them about new filings.

Hope this helps.

-cb

EDIT: Mighty Mouse clause

[edited by - cbenoi1 on July 4, 2003 9:34:34 AM]

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Guest Anonymous Poster
There are some other patent issues to consider, at least in the US. For example, it is rare for the patent office to respond to a filed application in less than 14 months (at which time they are supposed to respond), but I have seen applications in which the patent office took between two and three years to respond. Software applications are especially backed up, and so long response times are common. This brings up the first issue - will your game be in the bargain bin before you even have any protection from a patent (assuming that you get one)?

In addition, you have to consider whether it is really possible to detect infringement. In other words, if you have the latest and greatest method for doing whatever it is you are doing, will you actually be able to tell that someone else is using your method (without getting involved in litigation)? If not, patent protection is probably just a very expensive waste of time.

cbenoi1 - By saying "Mickey Mouse is off copyright", do you mean that it is no longer protected? If this is what you mean, the
Copyright Term Extension Act of 1998 gave Mickey some additional life. If that''s not what you mean, sorry, I misunderstood you.

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> "Mickey Mouse is off copyright", do you mean that
> it is no longer protected?

From my understanding, the US 1790 copyright act had an ''unlimited life'' clause for graphic art, cartoon characters included (someone told me the clause was originally devised for portraits). The newer modifications of 1998 extends the life of all art by 20 or so years, but the ''unlimited life'' clause was abolished. The Mighty Mouse will be up for grabs around 2023 in the US; so it''s not protected ''forever'' anymore.

Maybe I should have expanded on my earlier sentence. Thanks for pointing that out.

-cb


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I can''t see how IP rights can inhibit creativity at all. IP rights protect creative works that already exist. If you are using someone elses IP you are simply copying or adapting - not creating.

Dan Marchant
Obscure Productions
Game Development & Design consultant

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quote:
From my understanding, the US 1790 copyright act had an 'unlimited life' clause for graphic art, cartoon characters included (someone told me the clause was originally devised for portraits).

The copyright act from 1790 granted authors a 14 year copyright monopoly. The copyright term today is in practice indefinite since the media companies' "campaign contributions" (or whatever they call the bribes these days) to US politicians extend the copyright term faster than it expires.

quote:
If you are using someone elses IP you are simply copying or adapting - not creating.

All works copy something from what has come before them. I don't think IP-laws constitute a very good measurement of originality.

[edited by - HenryAPe on July 4, 2003 1:10:18 PM]

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"If you are using someone elses IP you are simply copying or adapting - not creating. "
This is not entirely true. People don''t know when to draw the line. They think anything similar is infringment, when in some cases it can be straight up, fair competition. "IP" is still a cloudy term. People are getting into grey-areas. Especially when you look at names, it won''t be long before our movies and games are forced to use long sentances, numbers, or made-up words just to dodge lawsuits.

I say we should be thankful the entire industry wasn''t patented by the people who made PONG, like Hasbro did with trading card games. Or else many of us would be jobless and still playing PONG..

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quote:
Original post by Anonymous Poster
"If you are using someone elses IP you are simply copying or adapting - not creating. "
This is not entirely true. People don't know when to draw the line. They think anything similar is infringment,

Yes it is true. I was talking specifically about using someone else's IP. Not about creating something similar.

Dan Marchant
Obscure Productions
Game Development & Design consultant

[edited by - obscure on July 4, 2003 8:30:46 PM]

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Most of the patents I have found so far are owned by companies that are involved in hardware manufacturing. The coin-op industry, however, blends hardware and “Gameplay” technology which has resulted in a number of interesting patents. Sega, who have always excelled in lavish console design, owns patents to their ski simulator and fishing game and Midway actually owns the rights to the “Ghost-car” feature which is implemented in damn near every racing game today. Why has this not been enforced? (Or has it?)

I am interested in the kind of patents that are not directly connected to console design and interaction devices. Example: Max Payne, the number one PC-shooter of 2001(?), incorporated a gameplay function called “bullet-time” which received a lot of attention. Clearly inspired by the Matrix and Hong Kong action movies, this function allowed the player to momentarily slow down the action around him while still being able to aim his guns in real time. A striking and beautifully implemented feature that gave the player an advantage during the game’s intense action sequences. This became no doubt one of the game’s main selling points, but with a production time of over three years, there was an inherent risk that another game would be released that featured its own version of bullet-time. With the almost understated importance of originality (at least in non-franchise, non-licensed products), the game would probably not have been such a huge success if this feature was not considered a novelty. Would it have been possible for the creators of Max Payne to take actual legal precaution instead of just “keeping it a secret”?

There are other IP-issues that concern game developers, that are perhaps more difficult to foresee and deal with. Swedish developers Digital Illusions described in an interview some unexpected setbacks that occurred while working on Midtown Madness 3, a racing game set in photo-realistic environments in Paris and Washington. Apparently, some grumpy old frog (pardon my French…) owned the intellectual rights to the “illumination” of the Eiffel tower. I am not sure how they worked it out, but excluding the tower from a game that claims to offer a near-real-life experience of cruising ‘round the streets of Paris is simply not an option.

Do you think that it is possible to develop some kind of methodology that can be used by game designers that allows them to deal with IP-issues at an early stage, or is this impossible given the quasi-chaotic process of game design? Could they be closely tied to game genres or would this be futile considering the evolution of the gaming industry and genre-blending?

Readers of French heritage: Please do not be offended by the ‘frogs’- remark:-)

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