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Subject: To Patent, or Not to Patent? That is a BIG question... rss

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Dan Hale
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So I've read the two stickies on this, including the full thread on the first one:

1) http://boardgamegeek.com/thread/493249/mythbusting-game-desi...

2) http://boardgamegeek.com/thread/322382/game-design-self-publ...

The first thread claims you can patent very unique game mechanics. The second thread claims you can't patent game designs. I'm guessing the distinction here is you can't patent your whole game design, but you can patent certain unique elements of it. Is that right?

If so... And assuming I have come up with something very creative and unique in my game (please... I don't want to get viciously flamed for making that claim, so just humor me here), is a patent a good idea? A patent costs around $6000 to $10000 up front and more to maintain over the years, but protects against someone directly ripping off my game mechanic.

However, it doesn't protect against everything -- it has to be a specific combination of ideas, and people can still use your idea by bypassing one or more of those specifics. People often bring up the MTG tap mechanic, which in the patent is combined with lots of other specifics so other games are not terribly fearful of repeating the tapping action in various forms. This is good from the perspective of preventing patents from strangling all the creativity and options out of the greater community; it's bad in that it leaves the patent holder somewhat vulnerable to getting ripped off by another company or individual who knows how to game the system. And patents apply to only one country so... knockoffs abound in other nations.

So... To patent, or not to patent? What tangible protection does it give me, and at what point does it justify the cost?

I ask because I'm now at the trigger point -- pay for the application and proceed, or save the money and venture forth without. Both have real risks and trade-offs, and I wanted to get some second opinions. I have researched heavily and I think I have game mechanics that are very unique and can likely be patented, and they're worth stealing. The question is, SHOULD I patent it?
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Matt Shinners
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Just as a quick note, that $6-10K is probably going to end up a lot higher, as I can pretty much guarantee an attempt to patent a game mechanic is going to go through several rounds of denials and appeals with the USPTO, all of which means you're going to be paying a patent lawyers quite a bit of cash. Even after that, you're not guaranteed to get a patent.

On top of that, if someone infringes, you're going to have to go to court to defend your patent, which is even more money. And we're not talking iPhones here - the profits generated by a game aren't that high.
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A.J. Porfirio
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Most games won't ever net 6-10k and you are going in the hole by that before any other costs without even knowing if your game will be successful.

Save your money. You will be glad you did.
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Josh Malbon
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Deck-building the patent.

I am sure the designer of Dominion or even the one that surely came before him with the "orginal" idea would have wanted some patented revenue from competetitors but I think in the reality it is just better to come up with some awesome idea and market it without the bother of trying to "own it."

Yes, crap could happen. Evil people may come in between. Heck, in the writing world I have had people blatantly rip off my ideas to no monetary benefit, but in the end the finished product is the key goal.

If you have something sooo awesome of a product it will hold on its own merit and you need not bother with patent protections and such.

That is only my opinion of course. But I really do not think it is worth the lawyer game over it. Make the product, design the product, and let the chips fall where they may.

Defending the defense of some idea seems an effort that will in the end only play to the lawyers, and I believe the concept you are going with is to be an awesome game, so make that the goal rather fighting legal disputes with the undesirables over this or that. So go for the goal.

Thomas Edison was not the first to come with the idea of the incandescent light bulb, but it was the hard work in the process to finish the idea to a working solution that made him wealth.....the product NOT the idea is what will sell.
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vanrydergames wrote:
Most games won't ever net 6-10k and you are going in the hole by that before any other costs without even knowing if your game will be successful.

Save your money. You will be glad you did.


What AJ said.
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Terren C
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I agree with the sentiment of this thread. Based on my readings into the matter, the best course of action (at the very most) is filing for a copyright. This is fairly inexpensive, I just looked it up, $35 to file online.

Even if you happen to get a patent, it still does not guarantee you won't be ripped off somehow. At least with a copyright, you have it inherently whether you file or not. Filing just makes for a better case when someone tries to copy you.

There seem to be a lot of grey lines in the board game world when it comes to defining mechanics and such. I know I'm going to save myself the trouble and money by not dealing with patents on my ideas.
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Kris J
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And the $35 is a rip off, too . . . .

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Patenting game mechanics is a pain in the ass to everyone, and really accomplishes nothing. Consider the best know example - 'tapping' cards in Magic. A great many people think they're jerks for patenting such a thing in the first place, and dozens (probably hundreds) of other games use the same technique anyway by simply changing the name. They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.
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Sphere wrote:
They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.

Well that and the 10M people who purchase and play the game regularly.

static_void wrote:
And assuming I have come up with something very creative and unique in my game (please... I don't want to get viciously flamed for making that claim, so just humor me here)

I think the last place you'll get flamed for this sorta rhetoric is in a room filled with people who are quite confident they have something far more unique and creative up their sleeve than you. I’m guessing you're pretty safe.

static_void wrote:
The question is, SHOULD I patent it?

Here’s my take, and trust me I feel your pain more than you know at this very moment. If you think you have something as brilliant as “Tapping” – in that vein of a mechanic – skip it… for all the reasons others and you yourself have raised. However if you think you have something as brilliant as U.S. Patent No. 6899332, more along those lines, then I would at least schedule a consultation with a decent patent attorney.

As a far less costly and cloudy solution you could always simply tell us in great detail what the mechanic in question is. Use diagrams if you have them or perhaps some high-quality video. Then we can give you an honest assessment on whether you should proceed or not. devil
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static_void wrote:
So... To patent, or not to patent?


No. It's a complete waste of money, no matter how unique or marvelous your mechanics are.

Consider this: you'll invest $6k in the patent. You'll need to sell a hell of a lot of games to get any sort of return on that (don't think that you'll be able to license your mechanic - new mechanics are a dime a dozen even the great ones). Board gaming is a specialty market, the sales figures aren't that high: 10 000 units is the equivalent of selling platinum several times over. Eclipse, the hottest new game on BGG right now, will be printed in around 7-8 000 units. And that's for a game that's hyped through the roof.

As a designer you'll likely to earn around $1 in royalties per game - you do the math.

Also, a patent is only valid in the issuing country. So if you get a US patent someone can print and sell your game in Canada (unless the countries have a reciprocal treaty and even then you'd have to sue in two countries at once - and that cost money).

Remember that you can always patent after the fact, especially in the US where it's "first to invent" instead of "first to file" as in other countries. Magic was released in '93 but not patented until '97. So if you have a mechanic that starts to gross you huge amounts of money you can protect it then.

If you absolutely must get a patent file a provisional patent application which only costs you $125 and grants you a one year protection of your patenting rights.

Quote:
What tangible protection does it give me, and at what point does it justify the cost?


Easy answer: none.

A patent is only as strong as your ability to pursue it in the court of law. This is why almost no patent battles are won by independent invetors/small companies - large companies have the ability to bankrupt small patent owners through lengthy litigation. And remember the "only valid in a single country" statement above: you'll have to fight in every country in the world. And you'll have to keep track of every game published everywhere in the world in order to be able to file suit (no one does that for you - unless you hire someone to do it, which brings us back to the cost/benefit analysis above).

The point at which it becomes viable to patent something is the point where you see, with a reasonable (say 99.9%) probability that it will gross you so much money that everyone will try to get on the bandwagon (highly unlikely in itself) and what makes people buy is not protected through copyright, trademarks or other forms of IP.

Take a look at Dominion. Would it need a patent to protect itself? No, because if you made a new Dominion no one would buy it - people buy due to the name Dominion and not the mechanics. Same with Magic, Pokemon, Star Wars and any other franchise.

So to summarize: don't fall into the trap of spending money on something that isn't bringing you in any money (yet).
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MattShinners wrote:
On top of that, if someone infringes, you're going to have to go to court to defend your patent, which is even more money. And we're not talking iPhones here - the profits generated by a game aren't that high.


And even Apple, with all their patents on the iPhone and all their lawyers, haven't managed to do more than stall Samsung and other tablet/smartphone manufacturers.
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Isaac Shalev
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Try asking the question the other way: which existing mechanics, had they been patented, would have yielded a significant monetary return?

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Sphere wrote:
Patenting game mechanics is a pain in the ass to everyone, and really accomplishes nothing. Consider the best know example - 'tapping' cards in Magic. A great many people think they're jerks for patenting such a thing in the first place, and dozens (probably hundreds) of other games use the same technique anyway by simply changing the name. They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.


They did not patent the name, they patented the mechanism. Calling it something else in your game does not get around the patent. What we don't know, of course, is whether the patent holder is getting any license fees for the use of the mechanic in other games. But I certainly agree with their primary return being ill will. Some of that will go away shortly as the patent is about to run out.

But the primary thrust of the replies to the thread - don't waste your money on a patent - I whole-heartedly endorse. If someone really has such a brilliant new mechanism that it is worth patenting (and it is questionable how many of these there are) then they should have little difficulty finding a publisher who wants to publish it who may (but probably will not) do the patent thing for them. If you are publishing yourself, then you will have taken a lot of money from the market before the first competitors appear so will have done well. With or without the patent, rip-offs of some nature will appear. Are you really up to the cost of fighting them through the courts? You have to be incredibly confident that your idea is worth a small fortune to think that is worthwhile.
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Howitzer_120mm wrote:
vanrydergames wrote:
Most games won't ever net 6-10k and you are going in the hole by that before any other costs without even knowing if your game will be successful.

Save your money. You will be glad you did.


What AJ said.


Agreed.
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Harald Korneliussen
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brahmulus wrote:
Sphere wrote:
They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.

Well that and the 10M people who purchase and play the game regularly.


That's despite the patent, not because of it. Marking a card as used by tipping it over is an ugly patent; an example of something obvious and very basic which would hamper innovation greatly if it was ever enforced (to WotC's credit, they don't appear to have chosen patent harassment as a business model).
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Sturv Tafvherd
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brahmulus wrote:
Sphere wrote:
They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.

Well that and the 10M people who purchase and play the game regularly.


I agree with Sphere ...

... and I also think that even without the patent, the same "10M" people would still play the game. Which begs the question: does having a patent on a game mechanic actually add value / profit at all?
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Drew Dallas
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vintermann wrote:
brahmulus wrote:
Sphere wrote:
They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.

Well that and the 10M people who purchase and play the game regularly.


That's despite the patent, not because of it. Marking a card as used by tipping it over is an ugly patent; an example of something obvious and very basic which would hamper innovation greatly if it was ever enforced (to WotC's credit, they don't appear to have chosen patent harassment as a business model).


Well don't give them too much credit. Their patent AFAIK has never been defended in court, and if it was there might be a good chance they would lose the battle in whole or part.
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I concur with those that said it is likely to cost you much more than 6k-10k to get the patent. Without going into a lot of details, to get a patent the invention has to be new and not obvious. The courts have significantly raised the bar in establishing an invention as nonobvious. Therefore, it is easier for the U.S.P.T.O. to deny your claims. So, you will end up spending maybe 2k-5k arguing with the patent office before they may allow your patent. In addition, small inventors need to be aware that the patent only covers what is in the claims. So you need to make sure that you do not end up with a patent that actually covers very little.

Also, as others have said, small inventors often do not realize the cost of asserting your patent. A small patent case costs at least 750K through trial. Even if you were to settle at the beginning of a case you would have to spend 10k-50k before you get to significant discovery in the case. Can you really afford to assert your patent? Attorneys will sometimes work on a patent case on contingency, but only if the potential damages are significant. You have to also consider this.

You automatically have copyright in expressive portion of your game, and you don't have to pay a nickly. Through use in commerce, you automatically have some trademark rights. Perhaps, you should consider these less expensive methods of protecting your intellectual property.
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Douglas Weinstein
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Darksbane wrote:
vintermann wrote:
brahmulus wrote:
Sphere wrote:
They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.

Well that and the 10M people who purchase and play the game regularly.


That's despite the patent, not because of it. Marking a card as used by tipping it over is an ugly patent; an example of something obvious and very basic which would hamper innovation greatly if it was ever enforced (to WotC's credit, they don't appear to have chosen patent harassment as a business model).


Well don't give them too much credit. Their patent AFAIK has never been defended in court, and if it was there might be a good chance they would lose the battle in whole or part.


The standards of patentability have changed significantly in the past 10 years. Any patent issued before May 2007 in particular is somewhat suspect.
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Paul DeStefano
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Spending $6K on any game development is a bad idea.
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Stormtower wrote:
brahmulus wrote:
Sphere wrote:
They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.

Well that and the 10M people who purchase and play the game regularly.


I agree with Sphere ...

... and I also think that even without the patent, the same "10M" people would still play the game. Which begs the question: does having a patent on a game mechanic actually add value / profit at all?
It only adds value if you believe that enforcing the patent would lead to fewer games competing against it, and thus leading to extra sales (and profit) OR you believe that you can gain revenue by licensing the mechanic to your competitors. These days most patents seem to be issued for the second reason, rather than the first, if I understand correctly.

I have only dealt with corporate patent lawyers, who did most of their stuff without the input of the inventor. So I have never found out if any of my patents (not in the game industry) have been effective for either reason.
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static_void wrote:
I think I have game mechanics that are very unique and can likely be patented, and they're worth stealing.

You're wrong.
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brahmulus wrote:
Sphere wrote:
They paid the fees, and they pay the lawyers to maintain the patent, but their primary return (so far as I can see) is ill will from the gaming community.

Well that and the 10M people who purchase and play the game regularly.

I don't think those however many people do so because the tapping mechanic is patented. Particularly considering the many mechanics of exhausting or rotating or turning cards over that essentially do the same thing but are known by another name. They do so because MtG keeps selling a product they want and supporting it with good advertising.
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static_void wrote:
So I've read the two stickies on this, including the full thread on the first one:

1) http://boardgamegeek.com/thread/493249/mythbusting-game-desi...

2) http://boardgamegeek.com/thread/322382/game-design-self-publ...

The first thread claims you can patent very unique game mechanics. The second thread claims you can't patent game designs. I'm guessing the distinction here is you can't patent your whole game design, but you can patent certain unique elements of it. Is that right?

If so... And assuming I have come up with something very creative and unique in my game (please... I don't want to get viciously flamed for making that claim, so just humor me here), is a patent a good idea? A patent costs around $6000 to $10000 up front and more to maintain over the years, but protects against someone directly ripping off my game mechanic.

However, it doesn't protect against everything -- it has to be a specific combination of ideas, and people can still use your idea by bypassing one or more of those specifics. People often bring up the MTG tap mechanic, which in the patent is combined with lots of other specifics so other games are not terribly fearful of repeating the tapping action in various forms. This is good from the perspective of preventing patents from strangling all the creativity and options out of the greater community; it's bad in that it leaves the patent holder somewhat vulnerable to getting ripped off by another company or individual who knows how to game the system. And patents apply to only one country so... knockoffs abound in other nations.

So... To patent, or not to patent? What tangible protection does it give me, and at what point does it justify the cost?

I ask because I'm now at the trigger point -- pay for the application and proceed, or save the money and venture forth without. Both have real risks and trade-offs, and I wanted to get some second opinions. I have researched heavily and I think I have game mechanics that are very unique and can likely be patented, and they're worth stealing. The question is, SHOULD I patent it?


Can you afford the time and money to monitor, and then defend your patent? Can you do so against a larger entity with greater resources?

Also, do you want to sell your patent, and will this offset the cost of the patent app?

The bottom line is this is a business decision. Sometimes the expense may just be a cease and desist letter, but these are easily ignored as it is a bluff, unless you can (and want) to take the time and spend the money to defend your IP.

Do you think you will lose more $$$ than you will spend on the patent app and its defense should someone else use your idea and create competition for your game(s)? Do you think you can sell the rights to your patentable property to offset the patent application costs and its defense?

If no, then move on.
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This issue comes up on a semi-regular basis on these forums, and I can't say I understand why. Have any of you ever heard of Garry Potter? No? It's a Russian rip-off of Harry Potter, and it's barely selling even in Russian-speaking countries. Don't worry about other people stealing your idea. Make your product the best one, and people will buy it before they buy the cheap knock-off.
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