Video gaming and IP: how to play the game · are meaningful only in gaming context, perceived (or...
Transcript of Video gaming and IP: how to play the game · are meaningful only in gaming context, perceived (or...
Video gaming and IP: how to play the game
Stephan HANNE
International Cooperation and Legal Affairs Department, EUIPO
25th February 2020
Database rights
Overview of non-technical IP and other rights
Copyright
TrademarksDesigns
Trade Secrets
Image rights
Unfair competition
Dataprotection
Gambling law
Computer programs
Don‘t clone, bro
Design protection for (animated) characters, logos, etc.
Space invaders – In-game elements invading the real world
(Source: https://www.sothebys.com/) (Source: https://www.space-invaders.com)
Design protection for game hardware
Design protection for graphical user interfaces
Design protection for graphical user interfaces
C-393/09, 22.12.2010: A graphic user interface is not aform of expression of a computer program within themeaning of Article 1(2) [EU computer programdirective] and cannot be protected by copyright as acomputer program under that directive. Nevertheless,such an interface can be protected by copyright as awork by [the EU information society directive] if thatinterface is its author’s own intellectual creation.
Overlap of non-technical IP rights
The multiplayer game
Overlap of non-technical IP rights – The multiplayer game
• Trade marks and designs
Overlap of non-technical IP rights – The multiplayer game
• Trade marks and copyrights
Overlap of non-technical IP rights – The multiplayer game
• Copyrights and designs
(Source: https://www.landmarkusa.com/vr)
IP from every angle
The next level
IP from every angle - The next level
• IP generated by the creation of video games
• IP required to create video games
• IP for and by playing video games
IP from every angle - The next level
• IP for and by playing video games
(Source: http://go.secondlife.com/landing/creator/?lang=en)
Idea and Expression
The gameplay
Don‘t clone, bro
Idea and Expression – The gameplay
Art. 9(2) TRIPS: “Copyright protection shall extend toexpressions and not to ideas, procedures, methods of operationor mathematical concepts as such.”
Art. 1(2) EU computer program directive: “Protection inaccordance with this Directive shall apply to the expression inany form of a computer program. Ideas and principles whichunderlie any element of a computer program, including thosewhich underlie its interfaces, are not protected by copyrightunder this Directive.”
Idea and Expression – The gameplay
T-68/11, 6.6.2013 – Watch dials
Idea and Expression – The gameplay
Expressionless idea → Idealess expression
(Source: https://news.artnet.com/art-world/maurizio-cattelan-banana-explained-1732773)
Idea and Expression – The gameplay
• Merger doctrine: Scenes that must be done.
• Public domain: „And if they have not died yet, theyare still alive.“
• Derivative works
Idea and Expression – The gameplay
„I shall not today attempt further to define the kinds of material […]
but I know it when I see it“Justice Potter Stewart
Jacobellis v. Ohio 378 U.S. 184 (1964)
Thank youMaëlle, Adriana & Sylvie !!!
Videogaming and IP: How To Play The Game
A ‘Patent Perspective’
Peter Verhoef 2020
European Patent Office 24
European Patent Office
European Patent Convention (EPC)
25
Art. 52(1) EPC European patents shall be granted for any
inventions, in all fields of technology, provided that they are
new, involve an inventive step and are susceptible of
industrial application.
Art. 52(2)(c) EPC The following in particular shall not be
regarded as inventions within the meaning of paragraph 1:
"Schemes, rules and methods for mental acts, playing
games or doing business, [...]"
Art. 52(3) EPC, if claimed, "as such"
European Patent Office
Interpretation of the "rules for playing games"
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Interpretation provided in jurisprudence of Boards of Appeal,
e.g. T0336/07, T0012/08, T0928/03, T1543/06
Guidelines section G-II, 3.5.2 (added on 11/2018)
European Patent Office
Schemes, rules and methods for playing games
Traditional games
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Conceptual framework of conventions and conditions
governing player conduct and how game evolves in
response to player actions, from game setup, via unfolding
of options in-game, to goals
Serve the explicit purpose of playing a game,
are meaningful only in gaming context, perceived
(or agreed to) by players as rules
Game rules are, as such, abstract and purely
mental in nature.
European Patent Office
Schemes, rules and methods for playing games
Contemporary games
28
European Patent Office
Schemes, rules and methods for playing games
Contemporary games
▪ Today's games rely on technology, e.g. computers, but comprise
abstract elements, similar to rules, that are non-technical "in their
own right"
▪ Rules, understood "in a wider sense", are a conceptual framework
of complex, interactive and narrative rules governing how, ...
− ... game proceeds by design in interaction with players
(game world)
− ... game proceeds of its own accord (game objects, storyline)
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European Patent Office
Exclusion from patentability - Game Rules
Any technical means convey technical character to a game
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Not excludedExcluded
Method:
▪ draw two numbers randomly
▪ if numbers match, the game is won
Method:
▪ player taps along the game music
▪ if rhythms match, move to next level
Method:
▪ draw two numbers randomly using a
(cubic) dice or a computer
▪ if numbers match, the game is won
Method:
▪ player taps on a touch screen, along
the game music output by speaker
▪ if rhythms match, move to next level
European Patent Office
Inventive Step - Game Rules
31
Mix of game rules and technical features
(T1543/06, following COMVIK):
▪ game rules, by themselves, cannot support an inventive step,
▪ only the specific manner of their implementation can.
Game rules, contributing in context of invention to produce a
technical effect, enter into assessment of inventive step
Guidelines G-VII, 5.4, approach for mixed-type inventions
European Patent Office
Remote gambling (T1644/06)
▪ Player bets on a number, e.g. Bingo
▪ Physical draw is made at remote host
▪ Operator enters drawn number for
transmission
▪ Numbers are (machine-) scrambled
before transmission
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European Patent Office
Remote gambling (T1644/06)
Effects:
▪ potential of collusion or fraud reduced
as operator lacks knowledge of final
"virtual" indicia
▪ transparent to game play, rules
unaffected
Objective Technical Problem:
▪ How to secure outcome of a networked
BINGO game against fraud by a
malevolent operator?
33
European Patent Office
Electronic multi-play poker with face-up hand in
bottom row (T0336/07)
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DECK 2
DECK 1
European Patent Office
Electronic multi-play poker with face-up hand in
bottom row (T0336/07)
35
DECK 2
DECK 1
European Patent Office
Electronic multi-play poker with face-up hand in
bottom row (T0336/07)
36
Duplication
Not a game rule!
The poker rules stay
the same!
Reduces the number
of player inputs
More games per unit
time
Two cards are
shared in two
hands
Agreed convention
on how to initiate a
new hand → thus a
gaming rule
Technical effects
of efficiency from
the rule or from
implementation?
"the underlying notion of sharing held cards
between hands, inherently minimizes the number
of player selections ... time is thus reduced ...
more hands to be played per time unit."
"... though undoubtedly technical in the present
context, [these effects] are inherent in sharing
as a game rule."
"... these effects must be disregarded in the
evaluation of inventive step, as it is attributable
to the modified game rule, and not to its
technical execution by duplication."
European Patent Office
Inventive Step: ‘Insufficient’ Technical Effects
▪ Automated evaluation of game rules usually not inventive,
potential effects inherent already to rules and conception of game
▪ Inventive step requires "further" technical effects caused by
specific technical implementation of game (T1543/06, T1173/97)
▪ Circumvention, without overcoming a technical constraint
(T1547/09)
e.g. limiting memory, network, computational footprints owing to
simplified rules or design of yet another game,
− "efficient implementation" merely automates new game design
37
European Patent Office
Connected game-spaces (T2321/12)
▪ Game-spaces are interconnected
via portals
▪ Player must enter a portal to transition
to another, interconnected game space
Effect:
▪ Efficient transportation (or navigation)
of player characters between
game-spaces
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European Patent Office
Connected game-spaces (T2321/12)
No technical solution:
▪ game setup and structure limit inter-
space transportation to the transitioning
via portals
▪ "efficient navigation" is inherent to
game structure, technical problem as
to man-machine-interactions is at best
circumvented by portals rule
39
European Patent Office
Inventive Step: Non-Technical Effects
▪ Psychological effects usually are non-technical, e.g.
− amusement, entertainment, suspense, surprise ... (T0188/11)
− balanced, fair or otherwise rewarding gameplay (T0042/10)
− consequently: game scoring or skill ratings (T1281/10, T0042/10)
▪ Incidental effects, without a direct technical cause
e.g. commercial success of game product with popular new rules,
"no matter how ingenious they might be"
40
European Patent Office
Racing "Simulation" (T0188/11)
▪ Two players, one steering, one shifting
weight, ride on and control together a
virtual cart
▪ Characters they control, i.e. role as
pilot or co-pilot, may be swapped upon
button press
▪ Different virtual body-weights change
dynamics
41
European Patent Office
Racing "Simulation" (T0188/11)
Effect:
▪ Realism of physics "simulation" (weights)
▪ Excitement, appeal, variability of
gameplay
No technical solution:
▪ Swapping abstract idea, which results
in excitement, appeal
▪ No physical weight, but different
response to interactions with virtual world
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European Patent Office
Presentation of Information / User Interface
▪ G-II, 3.7.1 applies,
in particular:
▪ Cognitive content
cannot make
technical contribution,
if it merely informs
about game state at
non-technical level.
43
European Patent Office
Presentation of Information / User Interface
▪ Mapping of known input parameters
to parameters of video game qualifies
as game rule in a wider sense ...
▪ if it's a choice by game designer
made for purpose of defining game
44
European Patent Office
Presentation of Information / User Interface
▪ G-II, 3.7.1 applies, in particular:
▪ Manner of presentation can make technical contribution,
e.g. if it resolves conflicting technical requirements in context
of interactive, real-time control in a constrained game world.
45
European Patent Office
Video Game System (T928/03)
Even when the player
character P2 has come out
of the area of display so that
the guide G3 has become
invisible, a portion of the
guide G3 is displayed on
the end of the display area
so as to properly indicate
the direction in which the
ball is to be passed by the
player character P1.
player with football
guide mark
European Patent Office
Simplified claim 1
characterised in that :
a) shape, size and place of the guide mark of the player P1
b) a pass guide mark indicating another player P2
c) pass guide mark is displayed on the end of the display
A guide displaying method for use in a video game ... [video game
basically a football game] ... identifying the player that keeps the ball
with a guide mark ....
European Patent Office
Feature a
▪ Guide mark ring-shaped
aesthetic impression
→ non-technical
▪ Guide mark near foot
aesthetic; driven by non-technical rules of the game
→ non-technical
▪ Guide mark is enlarged
avoid the mark being concealed, hence serves technical purpose
of better visibility
→ should be considered in inventive step
Konami playerPrior art player
European Patent Office
▪ ad b: The attention of the player is drawn to a
point of interest [guide mark G3], which is a
technical contribution to be considered in the
inventive step discussion
→ not inventive
▪ ad c: The technical problem underlying feature c relates to
conflicting technical requirements:
(1) zoom in to display something on a large scale
(2) the display area may then be too small to show a complete
zone of interest
Features b and c
guide mark
European Patent Office
Feature c
Prior art:
Conventional video game GUIs normally do one of the following:
▪ superimpose a down-scaled map of the zone
of interest on the enlarged portion of the image,
▪ zoom out (losing detail),
▪ shift the viewing perspective (losing focus).
The Board ruled:
▪ The fact that the team mates' locations should be known by the user may be regarded
as a direct consequence of the game rules, ...
▪ ... the technical realisation of how such locations are made known is not related to
the game rules.
not derivable from the prior art available
European Patent Office 51
Overview Jurisprudence
(1995 – 2019)
T0875/93
T0535/96T0045/97
T0060/98T0109/98T0061/00
1995 2000 20192005 20152010
T1073/07T1112/08
T1553/09T1225/10T1769/10
T1251/10
T1939/10
T0630/11
T1385/12
T2184/12
T2321/12
T1884/13
T1266/17
T0570/91T0479/94T0333/95
T0951/02
T0468/05
T1482/05
T0072/06
T0495/06
T0576/06
T1023/06
T1092/06
T1134/06
T1274/06
T1024/00T0928/03
T0330/04T0153/05T0717/05
T1458/07
T1937/07
T0752/09
T0905/09
T1547/09
T1782/09
T1883/09
T1894/09
T2127/09
T0042/10
T0600/10
T0683/11T1375/11
T1386/12T2172/13
T1543/06
T1704/06
T0257/07
T0335/07
T0336/07
T0473/07
T0859/07
T1793/07
T1242/05T1093/06
T1102/06T1644/06T0012/08
T0667/10
T0919/10
T1837/10
T2449/10
T0188/11
T0594/11
T1009/11
T1039/12
T1331/12
T0414/12
T1510/15
T1386/15
T0904/16
T0448/16
T1469/15