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Idono87

Patents, Games and big publishers/developers

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So as many people might have read there's an abundantly large patent related lawsuit wave hitting everywhere this decade on mostely everything. The moste noticeable in the game industri is lawsuit towards "Zynga" and the lawsuit for the name "Scrolls" towards "Notch" (Wich is not a patent lawsuit).

It seems to me that it has become unbelievably easy to disrupt and/or completly destory smaller companys if they even try to put them selfs on the US market with their games. To put it more in perspective. Zyngas games has implemented a simple transaction/rewards system. Here in europe it would be completly impossible to do anything about it since it's an abstract software idee. But in the US, a smaller 2-3 man game company can get crushed by legal fees befor they can even prove that a patent is severly flawed and/or to broad to even cover some base system used in a game.

Now for the sake of argument. Why should indie developers and smaller companies even try to release their games on the american market if the risk of being completly screwed over by patent lawsuits?

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[quote name='Idono87' timestamp='1313711526' post='4850991']Why should indie developers and smaller companies even try to release their games on the american market if the risk of being completly screwed over by patent lawsuits?
[/quote]
Why should I cross the street to buy a newspaper, since there's a risk I could be hit by a car or struck by lightning?
Everything has its risks.
When I cross the street, I first look and listen both ways before I step off the curb. But I don't look up at the sky or carry a grounded lightning rod. The risk of being hit by a car is much greater than the risk of being hit by lightning, so I take more precautions against the higher risk.
When developing a game, you should take care not to step on another company's trademarks and you should make something unique. And you should consult your lawyer before releasing it.

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I can understand copyrighting charachters and Story. But gamemechanics have been copied over and over and there's rarely any new contributions except different combinations.

Ok so what if i do make it in to the American market only to get sued by a really broad patent and i dont have any money hier a lawyer, even though i know that the patent can be invalidated. What should i do? Is there any way around it? and is there a way to get some money out of the suing party and discourage future lawsuits?

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[quote name='Idono87' timestamp='1313773316' post='4851281']
I can understand copyrighting charachters and Story. But gamemechanics have been copied over and over and there's rarely any new contributions except different combinations. [/quote]
Most parts of mechanics can be copied, but some parts cannot.

Also, you cannot copy the whole thing in its entirety.

For example, you are fine to make your own dungeon crawler. You are just fine to make your own system of weapons, armor, attacks, spells, inventories, and so on. But you are NOT permitted to implement the rules from the D&D rulebook.

Another example, you are fine to make your own CCG. You are just fine to create your own cards, your own rule systems, playing areas, and so on. But you are NOT permitted to implement the rules for MTG or Yu-Gi-Oh.

[quote]Ok so what if i do make it in to the American market only to get sued by a really broad patent and i dont have any money hier a lawyer, even though i know that the patent can be invalidated. What should i do? Is there any way around it? and is there a way to get some money out of the suing party and discourage future lawsuits?
[/quote]

If you are afraid of sharks, best to get out of the water.

You know there are legal concerns but are unwilling to pay the small cost of a lawyer up front. Legal discussions and risk management are cheap, a few hundred dollars, maybe a few thousand if you have major issues to work through. Legal defense is very expensive. If you don't already have a working relationship, lawyers generally won't even discuss IP defense without a few thousand dollars up front, quickly reaching 5-digit and 6-digit figures.

It is like the difference between getting an annual flu shot vs spending several months in a hospital with major respiratory infection.

In both cases of lawsuits and disease, prevention is inexpensive and only slightly painful. You may not end up ever having serious issues, but if you do it can be fatal.

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It's worth noting that patents, copyright and trademarks are not the same thing.

[quote name='Tom Sloper' timestamp='1313716719' post='4851014']
When developing a game, you should take care not to step on another company's trademarks and you should make something unique. And you should consult your lawyer before releasing it.[/quote]For trademarks, sure, though I think the OP's point was that this is increasingly hard with frivilous cases ("droid", "app store" - "scroll" sounds like that too, although I don't know the particular details of that case). A game can still be unique, even if it falls foul of one of these. A game can still be unique, but infringe on a patent. Unless you mean totally unique, not having anything in common whatsoever, but then I'd argue there's no such thing as a unique program.

[quote name='frob' timestamp='1313778759' post='4851317']For example, you are fine to make your own dungeon crawler. You are just fine to make your own system of weapons, armor, attacks, spells, inventories, and so on. But you are NOT permitted to implement the rules from the D&D rulebook.

Another example, you are fine to make your own CCG. You are just fine to create your own cards, your own rule systems, playing areas, and so on. But you are NOT permitted to implement the rules for MTG or Yu-Gi-Oh.[/quote]OOI, have there been court cases on these issues - and was the issue patents, copyright or trademarks?

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[quote][quote name='frob' timestamp='1313778759' post='4851317']For example, you are fine to make your own dungeon crawler. You are just fine to make your own system of weapons, armor, attacks, spells, inventories, and so on. But you are NOT permitted to implement the rules from the D&D rulebook.

Another example, you are fine to make your own CCG. You are just fine to create your own cards, your own rule systems, playing areas, and so on. But you are NOT permitted to implement the rules for MTG or Yu-Gi-Oh.[/quote]OOI, have there been court cases on these issues - and was the issue patents, copyright or trademarks?
[/quote]

Yes, there have been court cases.

I'm not aware of any that were taken through to final court decisions, all of them I know of were settled. Based on what I have seen, they did so because the infringer realized that they were likely to lose and would rather take a negotiated settlement than face a potentially stronger court order. Court-ordered penalties for infringement are typically very severe.

Wizards of the Coast, now under Hasbro, has vigorously enforced all three of those things (patents, copyrights, and trademarks) for the D&D brand. They have several patents on their specific gameplay processes, they have trademarks on many names and logos, and they have copyrights over scenarios and rules and descriptions. D&D has a long history of protecting their work, and since most of the infringers did so out of love for the brand, have been willing to change their work accordingly.

WotC also own Magic: The Gathering and Pokemon CCGs. They also [url="http://www.google.com/patents?vid=5662332"]own some patents[/url] relating to the very specific rules used in both games. They have had infringement C&D letters sent, DMCA takedowns, and a few court filings over the years from people implementing their own M:tG games with scanned/downloaded card and reusing their rules.

Konami owns Yu-Gi-Oh, and they similarly actively enforce their trademarks and copyrights. Many Yu-Gi-Oh clones have similarly been shut down by Konami.

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[quote name='Tom Sloper' timestamp='1313716719' post='4851014']
Why should I cross the street to buy a newspaper, since there's a risk I could be hit by a car or struck by lightning?
Everything has its risks.
When I cross the street, I first look and listen both ways before I step off the curb. But I don't look up at the sky or carry a grounded lightning rod. The risk of being hit by a car is much greater than the risk of being hit by lightning, so I take more precautions against the higher risk.
When developing a game, you should take care not to step on another company's trademarks and you should make something unique. And you should consult your lawyer before releasing it.
[/quote]

I don't entirely agree, Tom. With some patents existing for ridiculously trivial programming tasks such as "taking payments over the internet in a browser" the risk of someone new coming and making a wildly popular niche game and therefore pissing off some corporation because "they have patents" and feel entitled to some of the small guy's pie is pretty high and you simply can not make a "modern" game without avoiding all possible patent infringements.

[url="http://www.stormdriver.com/blog/start-ups-in-the-maze-of-software-patents/"]http://www.stormdriv...ftware-patents/[/url]
[url="http://ticc.uvt.nl/%7Epspronck/ridiculouspatents.html"]http://ticc.uvt.nl/~...ouspatents.html[/url]
[url="http://www.theroadgoeson.com/?tag=ridiculous-software-patents"]http://www.theroadgo...oftware-patents[/url]
[url="http://en.swpat.org/wiki/Example_software_patents"]http://en.swpat.org/...oftware_patents[/url]

In the course of a week at work I implement about a dozen or so patented "ideas." I can sympathize with the OP's concern as it's one of mine as well. I'm glad the Court of Appeals for the Federal Circuit[i] [/i]recently made it easier to shoot down patent infringement claims.

[url="http://slashdot.org/story/11/08/18/1822255/Appeals-Court-Makes-It-Easier-To-Dump-Software-Patents"]http://slashdot.org/...oftware-Patents[/url]

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[quote name='freddyscoming4you' timestamp='1314207218' post='4853294']
1. With some patents ... the risk of someone new coming and making a wildly popular niche game and therefore pissing off some corporation because "they have patents" ... is pretty high ... I can sympathize with the OP's concern as it's one of mine as well.
2. and you simply can not make a "modern" game without avoiding all possible patent infringements.
[/quote]
1. OK, then what are you going to do? The newspapers are on the other side of the street, there are cars going along that street, and there are electrically-charged clouds in the sky overhead. Guess you'll have to do without that newspaper, unless you have a portable lightning rod. And two traffic cops. Don't make games yourself; if you're determined to work in games but are as risk-averse as the OP, you can just work for a game company, and let the company owners take the risk.
2. Absolutely. If you can't stand the heat, I suppose you'll have to stay out of the kitchen.

You should be aware of the risks. You should have legal advice. You should cross that street in the wisest way.

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I just find it ludicrous that an environment exists in which the common tools are available to anyone and may be applied equally by anyone, for all practical intents, yet there is a group of people who can drag you in front of a judge since you used said tools simply because "they wrote it down first" and the advice of 'well, don't infringe" simply isn't practical or possible. I get what you're saying. I guess the point of my post was to simply put my 2 cents in on the issue and provide a link to a story showing that reforms, for lack of a better word, are coming to how patents are handled and, therefore, there shouldn't really be as much trepidation and fear surrounding software development and that legal precedents are under way to provide tools with which one may more suitably defend themselves.

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[quote name='freddyscoming4you' timestamp='1314282724' post='4853654']
I just find it ludicrous that an environment exists in which the common tools are available to anyone and may be applied equally by anyone, for all practical intents, yet there is a group of people who can drag you in front of a judge since you used said tools simply because "they wrote it down first" and the advice of 'well, don't infringe" simply isn't practical or possible. I get what you're saying. I guess the point of my post was to simply put my 2 cents in on the issue and provide a link to a story showing that reforms, for lack of a better word, are coming to how patents are handled and, therefore, there shouldn't really be as much trepidation and fear surrounding software development and that legal precedents are under way to provide tools with which one may more suitably defend themselves.
[/quote]

Business environments favor the incumbents.

There is nothing new there, it has been the case since pre-history.

You can do what other businesses have done over the course of time: provide something new that creates a market, or slightly different and expands a market, or in a different niche within a market. Once you have a sufficient presence you can expand into the existing markets without difficulty.

In the brick-and-mortar world you can see this happen every day. A newcomer doesn't start out by opening a chain of stores across the nation. They start out by opening a single new store. The new store will create a new market (such as in a recently-developed area, or a never-before-seen product), or a slightly different or niche market (offering different fashions or foreign cuisine or some other alternative item). Once they grow large enough they can expand their inventory and open other shops, according to their plan.

However, if the brick-and-mortar store violates the law in some way, such as building their competing store too close to the other store as defined by city ordinance, the incumbent can certainly sue. This is something that a small amount of research would have prevented.


So it is with technology software. A newcomer, such as your tiny game studio, doesn't start out by making a AAA game. They start out with their own novel IP, either by creating a new genre or offering something new in an existing genre. As you release a second, third, fifth, or subsequent product you can expand into different markets. Just like with other businesses, it is your responsibility to research what else it out there and ensure you are not unlawfully infringing on the incumbent's legal rights.


Most businesses are able to do this just fine. It is not unduly difficult. It does require some effort, but that is just a normal cost of doing business. There is a minimum burden of care that you must do, but generally it is relatively small compared to the other difficulties of business. Take care to manage your risks, and as long as you are aware of the major risks and have addressed them, you can go about the business of growing the business.


If the incumbent does challenge you in the courts, you can defend yourself or simply quit. Often the incumbents will only fire a single C&D demand, where if you are sufficiently different a single reply from your own lawyer explaining why you are not in violation will be enough resolve the situation. If they continue in their action and it gets filed in court, you will have many opportunities to resolve it in a mutually acceptable manner. Assuming it does go to court, a judge will often require multiple attempts at reaching a settlement. If that continues until a judgement is made, you are given yet another chance to settle it; since both parties know what the court is likely to do they will settle and use the opportunity to cut their losses. Only if they STILL cannot reach a mutually acceptable agreement does the court issue penalties.

It is extremely rare to reach that final step.

In many settlements, if the little guy "wins" the dispute they will negotiate payment of their legal costs. If they don't settle and the courts order penalties, when the "winning" party is small they will generally request (and have granted) that all or most of their legal fees be paid by the "losing" party.

So really, it isn't all that bad for the little guy. You need to be aware of the risks, be willing to push back rather than run from a fight, and generally you will survive and flourish.



You also point out that it is now easier to challenge a patent. Even though it is easier, it is still an expensive and difficult proposition. It isn't something the average Joe can do. It still requires extensive legal work.

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