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New Patent Law Shifts Gaming Landscape

| 19 Jan 2012 16:41
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Game companies are going to start filing a patent for everything.

The United States Patent Office (USPTO) once championed the little guy, encouraging individuals to create new products and drive innovation through a "first-to-invent" system which awarded rights to the creator regardless of when he or she made that invention known to the public. That system prevented abuse by corporations to "steal" an inventor's ideas and apply for a patent to receive all the benefits that entails. With the 2011 Leahy-Smith America Invents Act, the U.S. switches to the system held by most of the rest of the world, awarding a patent to the first entity to file an application with the USPTO. S. Gregory Boyd from the lawfirm Davis & Gilbert LLP deals with the gaming industry often and he believes we will see a glut of applications from gaming hardware manufacturers like Nintendo, Sony and Microsoft after the AIA goes into effect in March 2013. But, interestingly, the act may actually foster more innovation with specific concessions to smaller indie companies.

"Independent developers do score a pretty big win with the new micro-entity status that makes patent fees more affordable for very small companies," Boyd said. "Also, making provisional applications more useful overall in a first-to-file system is helpful for independent developers. Those provisional applications are cheaper to file than full applications on the whole."

A micro-entity is defined as someone who makes less than 3 times the median annual income in America or is associated with a university. These micro-entities can file a patent with 75 percent of the fees that big corporations must pay.

The problem with "first-to-file" is that corporations with the resources will start filing for a patent for every half-baked idea or concept in their R&D pipeline, further clogging up the USPTO with "vitality sensors" and useless peripherals. "The US patent office will probably continue to do a pretty poor job at handling those applications in a timely manner. The wait time is often more than three years and some applications are pending as long as seven or more years," Boyd said. "I suspect the wait time at the USPTO will be fixed right after the line at the DMV is fixed."

One solution is to force inventors to submit a working prototype as was required with a patent application in the 1800s. Boyd doesn't think that is feasible and may actually hurt independent innovators and game developers. "If we require a working prototype then the large tech companies of the world will almost always win," Boyd said. "Working prototypes require more money. If patent law requires just 'really good' plans, that actually helps the little guy in most cases. Generally speaking, it would work for the benefit of small companies in games as well."

S. Gregory Boyd loves playing games in addition to working with game companies on legal issues, but he prefers escapism rather than games that dramatize courtrooms like the Phoenix Wright series. "It can be fun if a trial is part of a quest in an RPG and I have seen that done well, but I think a game based on drafting contracts would be excruciating," he said before admitting most of his job is rather dull.

"There is a reason you have to pay people to draft contracts - because it is very difficult and not very fun," Boyd said. "I'm like everyone else in my demographic on my time off. When I get home to play games, I like to build empires, slay orcs, and blow stuff up.

"Speaking of slaying orcs, my true calling in life is Orcs Must Die."

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