Patents in the gaming industry: how and why?

Introduction

In September 2024, Nintendo reportedly filed a patent infringement lawsuit against PocketPair, Inc alleging that PocketPair’s Palworld game infringes a number of Nintendo’s patent rights.

Many readers may be surprised to hear that Nintendo have patent rights covering aspects of their games. People in the industry may be wondering whether they would be able to obtain patent protection for their own gaming innovations and, if so, whether they should.

Are games patentable?

Whilst it might be expected that patents are available for hardware gaming features (such as physical controllers), many innovations in gaming are implemented in software. We often hear it said that “you can’t patent software”. This is not surprising, given that the European Patent Convention, which governs what can be patented in Europe, states:

“The following in particular shall not be regarded as inventions…schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers.”

That would seem to prohibit software patents until you read the following passage of the Convention:

“[the previous paragraph] shall exclude the patentability of the subject-matter…only to the extent to which a European patent application…relates to such subject-matter as such”.

You would be forgiven for being confused about what “as such” means in this context. Fortunately, this has been argued over in the case law for many years and, in most cases, it is reasonably clear (to patent attorneys at least) whether a software development is likely to be patentable (subject to being new and inventive).

In many cases, it is possible to obtain software patents in the gaming industry. For instance, whilst it may be difficult to obtain granted patents for inventions relating entirely to the ‘rules’ of a game, inventions which relate to other aspects of games can often be patentable, including those which might on first glance appear to be associated with game mechanics. These include inventions relating to user interfaces, networking, user input (e.g., from a touch screen or another input device), or making use of other real world sensor data.  To help illustrate this, consider the following examples, all of which are granted patents.

EP3605307B1 (granted in China, Europe, Japan, South Korea and the USA) relates to the use of a specific touch-screen gesture for in-game control.

An example relates to controlling a “racing game”. In particular, the user can complete movement operations, such as drifting and turning by performing “a simple preset gesture operation”.  This gesture includes the user performing a “slide gesture” and a “press gesture” “separately [] on a left virtual sub-interface and a right virtual sub-interface in the virtual interface”.  FIG. 5 illustrates this:

Thus, it may be possible to protect features relating to enabling user input during in-game play.

EP2441503B1, filed by Sony, describes “…control[ling] a game in which a character is moved along a shadow of an object located in a three-dimensional space”.  See for instance, FIG. 10:

Claim 1 of the granted European patent requires a “shadow render module” and a “move module” that controls aspects of the output presented to the user. These are the sort of features that can persuade patent offices that the concept is sufficiently “technical” to warrant patent protection, even when, at first glance, it might seem that the invention relates to game mechanics.

EP3412349B1 (granted in China, Europe, Japan, South Korea and the USA), refers to an efficient method of determining a movement track for two virtual “mock” objects interacting in a game environment.

The patent refers to “… fights between multiple players…” where “… in the fighting process, characters are usually hit away”. The patent goes on: “In a fight, the performance of simulation in the hit-away flying process and the falling-to-the ground process of a hit-away party plays an important role to a refreshing feeling of the fight. Therefore, a movement track of a hit-away mock object in a hitting-away scene is of great significance”.

The solution provided by this patent thus involves “obtaining… a track template”, and “adjusting the track template according to [] obtained information about the staging environment”.  See, for instance, FIG. 4, which shows a movement track where “the hit-away mock object [] takes a leap over a low obstacle in the hitting-away process”, and FIG. 5, which shows a movement track where “the second mock object cannot take a leap over the obstacle, and will slide down along the obstacle”:

This example shows that improvements in technical processes occurring within a game can also be patentable.

In general, when patenting gaming technology (like any other software inventions), there must be at least one feature that, in addition to being novel and non-obvious, has “technical character”.

Should games be patented?

We know that you can obtain patent protection for technical gaming innovations (“gaming patents”). The next question is: should you?

The answer lies perhaps in considering an overall intellectual property (IP) strategy that considers all forms of IP, including patents. A brief description of other types of IP rights, and their place in the gaming sector, is provided below.

Copyright protects creative works.  In video games, this can include anything from visual artwork to music to dialog, as well as the software of the game itself.

Trademarks are typically used to protect things like brands, logos, and slogans, and in the gaming sector, can also be used to protect elements of characters and franchises (think “Super Mario”).

Registered Designs are a form of intellectual property for video games that are perhaps lesser known than their counterparts, but can be useful for protecting the appearance of a product. In gaming, this could therefore provide protection for the shape of a video game console, controller, or accessory, as well as the appearance of user interfaces, or visual assets within a game. Note that registered designs (which protect visual appearance) differ from patents (which protect technical functionality).

Developing an IP Strategy For Game Developers

A first IP strategy might focus on preventing counterfeits and “copycat” products. A counterfeiter will typically seek to provide a product that is identical to the original. Trademarks, copyright and registered designs can all provide strong protection here. A “copycat” product may not be a direct copy (potentially avoiding copyright infringement), but if the look of the final product is very similar to the original, then trademarks and registered designs may still be infringed. Thus, trademarks, copyrights and designs can all be useful in the gaming industry.

An alternative IP strategy might consider a competitor seeking to provide similar functionality with a product that might look very different to the original. Copyright, trademarks and registered designs are unlikely to offer much protection in this case. Patents, however, may be infringed by the implementation of similar functionality.

Moreover, whilst IP rights (including patents) can be used to restrict the activities of competitors (as discussed above), this is not the only use of IP rights.

For instance, IP rights are assets that can be sold or licensed to others, thereby providing a potential revenue stream. IP rights can also be used as leverage or insurance (e.g. as part of a cross-licensing scheme that enables the company to use the IP of others). There is also a potential marketing benefit of being able to mark a product as including “patented technology”.

An appropriate IP portfolio can also make a company more attractive to investors, and can be an important part of making a company “investor ready”. Here, a focus on what forms of IP protection investors are likely to be interested in might determine whether or not patent filings should be made.

It should be stressed that IP rights, including patents, are not exclusively for multi-national companies. Having an IP portfolio can enable an SEM level the playing field to some extent when interacting with larger entities. After all, if your technology is not protected by IP rights (potentially including patents), then there is little to stop that larger entity from building on your ideas without involving you.

Summary

As discussed in this article, in many circumstances, protecting game mechanics with patents is entirely possible. Furthermore, patents can form an integral part of an IP strategy for a game developer, to complement any other relevant IP rights.

If you have any questions about intellectual property law relating to video games in the UK, Europe, or around the world, developing an IP strategy that supports a broader business strategy for game developers, or about implementing that IP strategy, Venner Shipley can help.  Just get in touch to discuss with one of our experts.