‘Shadow of Mordor’ screenshot courtesy of WB Games
Sherveen Uduwana is an independent game developer based in Riverside, California. His background in IP Law comes from his years as TA for USC’s Advanced Games program, where he would collaborate with USC’s Intellectual Property and Technology Law Clinic, and assist in setting up the annual IP Rights lecture for the class.
If they’re lucky enough, a gamemaker can sometimes end up in a very special meeting. This only really happens when you or your team find yourselves feeling as if you’ve struck gold in some way. Perhaps you’ve come out of a recent playtest realizing you have something special on your hands, and so you start talking about how you protect yourselves before going to the lengths it takes to produce something novel, useful, and non-obvious. And those are the key words—novel, useful, and non-obvious—where a lawyer passing by the room might suggest the option of seeking a patent.
Now, if the year was anytime after November 2017 and the system you had just developed was remotely similar to the Nemesis System—where enemies you faced were persistent and would evolve based on your past encounters—in WB Games’ Shadow of Mordor franchise, that same lawyer would advise you to drop the mechanic early instead of investing heavily in developing it, or see if you could license it in some way. With WB Games having successfully secured its patent for the Nemesis System, currently set to go into effect on February 23, developers in the industry are likely thinking back to meetings or discussions that steered them away from working with the promising mechanic—and realizing they’ve dodged a collective bullet.
It’s clear from some of the critical responses following the patent announcement that the assumed (and correct) impact of this patent will be to stifle innovation for future games. Should WB Games have asked themselves “Are We the Baddies?” in the years they spent securing this patent? The visibility the Nemesis System patent received could be a watershed moment for videogame patents, and it’s worth asking: why do they work the way they currently do? What kinds of things are gamemakers patenting? Do gamemakers have any ground to patent these things in the first place?
‘The Landlord’s Game’/ ‘Monopoly’ – A looping track
While it is a boardgame, if you’re discussing the ways in which patents can impact monopolies and you don’t literally mention Monopoly, that’s a missed opportunity. The Landlord’s Game was created by game designer, actress, and feminist Elizabeth “Lizzie” Magie, and was granted U.S. Patent 748,626 in 1904. This patent notably described a game that took place continuously around the board on an endless track, which was novel at a time when most board games had a defined start and end. Upon learning this, patent enthusiasts would continue making the same joke about it until the end of time.
But did this patent protect Magie as a creator? Unfortunately, not so much. Parker Brothers bought the already-expired patent off of Magie for $500 by 1935 in order to protect their legal interests when it was planning on mass producing a derivative work designed by Charles Darrow: Monopoly. Years after her death, no mention was made of her involvement in the game’s origin. It wasn’t until 1974, when Parker Brothers attempted to sue San Francisco State University Professor Ralph Anspach for trademark infringement on a game called Anti-Monopoly, that Magie’s patent was dredged up once more. Anspach argued the game essentially existed in the public domain before Parker Brothers had purchased it, and its trademark claim should therefore be nullified. While he was ultimately allowed to keep calling his game Anti-Monopoly, this lawsuit dragged on for 10 years and was only resolved through a settlement. This brings up two running themes that inform the history of patent protection in games: (1) the system is built to favor powerful corporations over vulnerable individuals and (2) any lawsuits are almost always resolved through settlements.
‘Crazy Taxi’ – Arrow Navigation Systems
Sega famously negotiated a settlement around its patent 6200138 for Crazy Taxi. The patent describes a “Game display method, moving direction indicating method, game apparatus and drive simulating apparatus,” and translates to a big arrow above your car telling you where to go. So when The Simpson’s: Road Rage came out with a finger telling your car where to go a mere two years later, Sega executives must have been seething. Sega and Fox notably settled out of court for an undisclosed amount, and developers gleaned that Sega had enforceable patents that covered some scarily broad aspects. After all, does an arrow telling you where to go pass the “non-obvious” test we use to see if something should be patented?
A big flaw with how the patent system works is that it favors large corporations regardless of the merits of individual patents. Patent lawsuits take time, and even if a patent would fall apart in court, it’s hard for plaintiffs to survive the process long enough to get there. Major companies can take each other to court and reach settlements over these patents, but the mere existence of a patent can scare-off smaller companies and creators. A court process that drags-out past a target launch date to the point it would leave many studios in financial ruin.
Namco – Loading Screen Minigames
Perhaps the most notorious example of a too-broad videogame patent is Namco’s patent 5718632. The patent features the following block of text, restating the phrases “auxiliary game” and “program code” as if they’re playing a game of legal mad libs:
“A recording medium in accordance with this invention preferably has program code means relating to an auxiliary game and program code means relating to a main game. . . .The size of the program code means relating to the auxiliary game is small in comparison with the size of the program code means relating to the main game, and the relationship between the program code means relating to the auxiliary game and the program code means relating to the main game is such that the program code means relating to the auxiliary game is always loaded first, before the program code means relating to the main game.”
This ostensibly was meant to protect Namco’s concept for playable minigames, or “auxiliary games,” that would keep players entertained while they wait for the main game, or “program code,” to load. However, because of the extensiveness of the descriptions, the effect more effectively discouraged any kind of interaction from happening during loading screens until it finally expired in 2015. Critics of the patent pointed out that a prior instance of the concept existed a whole eight years earlier. In 1988, Commodore 64 games started shipping with a fast loader routine developed by Richard Aplin, which was called Invade-A-Load. This routine quickly loaded a Space Invaders clone you could play while waiting for the main game to finish loading. Unfortunately, despite being questionable, this patent still presented a very effective deterrent, much like the Crazy Taxi patent did.
Why then, does the U.S. patent office even grant such broad patents? As with many issues within the patent system, it’s the result of an ebb and flow of over-corrections and under-corrections. The idealistic intent of patents is to promote innovation by forcing people to share information they otherwise would have kept a trade secret. In exchange for a period where they have a monopoly, the patent office gets notes and details on the innovation that are then publicly accessible to future innovators. Arguments for patent reform often refer back to this ideal, asking questions about what the public is getting in exchange for providing a monopoly to creators. A common critique of software patents like those secured by Namco and Sega is that they merely describe the process, while offering no real insight into executing or implementing it. This is happening because the U.S. patent office doesn’t understand software well enough to know what is pertinent information.
Current court precedent now allows for a videogame mechanic to be patented, but this wasn’t always the case due to limited understandings of software in the 60s and 70s. In the decades since, the Patent Office overcorrected and went from not accepting software as patentable to accepting it without understanding it. This allowed for a number of overly broad patents to gain approval and permitted patent trolls to take hold to some extent. Thankfully, a 2014 case, Alice Corp. v CLS Bank International, has recently made it easier to resolve litigation against dubious software patents, which might mean fewer instances of overly broad patents in games, and we might even see this case used as precedent against the Nemesis System patent at some point—what is colloquially known as an “Alice Challenge.”
Bioware – The Dialogue Wheel
Even with these Alice Challenges, it’s still hard to tell which patented mechanics might hold up to scrutiny in court. I generally think of Bioware’s radial dialogue wheel ( as a solid example of a game mechanic patent that isn’t overly broad. You can prove it’s novel and non-obvious by providing evidence of all the games in the same genre that have done dialogue in a completely different way, and many similar RPGs have been made without the dialogue wheel. The patent itself describes useful information for future designers, such as the following line:
“The graphical interface is consistent as to the position of dialogue classes throughout at least a segment of the program.”
There’s a level of detail being described towards how the system should be implemented in order to be useful–each little segment of the dialogue wheel is meant to correspond to different types of dialogue, and by being consistent with which segment you use the player will eventually associate different cardinal directions with types of responses. As a game designer, that level of insight is certainly useful, and I didn’t need to cold email Casey Hudson or other members of the Bioware dev team to procure it. But when compared with developer interviews or personal analysis, is that information sufficient to justify the level of monopoly that a patent provides? One of the key protections of a patent over a trademark is that someone does not need to be aware of your work to violate a patent, and that’s a lot of power to hand someone.
It’s worth talking about whether this mechanic is even suitably novel compared to something like the iPod scroll wheel. The way current precedent works, you can’t simply patent something that uses a computer to accomplish a task that already has been solved pre-software. Thankfully Bioware hasn’t been especially litigious with this patent, and similar games like Alpha Protocol, Deus Ex, and Vampyr have used dialogue wheel-esque systems without repercussions, but is awarding a monopoly a fair compensation for this level of insight for future developers? And for how long? Enough time to release the game without competition? Time for one sequel? Two? Three? This is a crucial discussion for the games industry and game consumers to have, because otherwise the upper limit of what gets patented and for how long is up to what corporations think they can get away with—a scary thought.
Even recent safeguards against larger corporations, like the Alice Challenges mentioned above, provide inconsistent results. Courts can and do come to different conclusions regarding software. We are also seeing fewer Alice Challenges each year and even fewer successful Alice Challenges, a possible indicator that people are becoming more adept at crafting their patents to survive these safeguards.
‘Katamari Damacy’ – The Titular Katamari
Sometimes the drive to seek a patent and legal protection can come from understandable places, but often intent isn’t enough to justify a flawed system. The patent for Katamari Damacy, which describes in some detail the game’s “method for executing a game by arranging a plurality of objects comprising a plurality of objects to be stuck and an operation object” exists in a similar space to patents like those for Sonic’s iconic Corkscrew Loops. Mechanics like these—a physics based system for determining how a clump of objects would roll based on its composition, or a technique to render a character moving in a spiraling direction against a flat screen—involve technological breakthroughs; they required research, experimentation, and a level of risk to achieve. At the current scale of the Katamari franchise, with 14 titles that have launched before the patent expires in November 2021, many developers’ salaries certainly hinged—to some extent—on the monopoly surrounding this mechanic. While that’s a positive element of the patent system, it’s always worth reminding ourselves that these decisions are mostly limited to large corporations—in this instance, the same Namco that blatantly used its Crazy Taxi patent to halt competition.
It’s almost always going to be large corporations that secure patents. A small indie team or solo dev is rarely going to have the resources needed to develop a mechanic that is easily patentable, since those novel, useful, and non-obvious checkboxes are difficult to tick. Most of the time, smaller studios rely on trademarks and copyrights when safeguarding their IP, which are much more limited, and in scenarios like Radical Fishing vs Ninja Fishing or Threes vs 2048, those protections did little to prevent what was arguably IP theft .
If the games industry is ever successful in improving the patent system as it applies to videogames, we’ll need to stay vigilant. At one point, patents didn’t matter much for games because copyrights were more powerful. But then a precedent was set weakening copyright protections so that patents became favorable. And someday in the future, something could happen to patent law that makes corporations abandon ship for trademark protections. The system will need to be constantly reevaluated by the industry every five years or so.
Until that point, the current patent system remains a tool for the already powerful to block access to the non-powerful. In many instances, we’re granting corporations monopolies over mechanics that last throughout the entire period that they will be in vogue, and it’s almost certain the industry as a whole isn’t getting enough in exchange.
