Tobold's Blog
Tuesday, December 22, 2015
Patents vs. Trademarks

I was looking at the game X-Mercs on iOS and quickly realized that it was a complete rip-off clone of XCOM, with some Pay2Win nonsense thrown in. Others have noticed that as well. But apparently there is no legal mechanism to protect games from being cloned. You can protect the *name* of a game with a trademark, which leads to nonsense like the Elder Scrolls vs. Scrolls and Candy Crush Saga vs. Banner Saga lawsuits. You can sue somebody for making a game that is completely different than yours, but you can't sue him for making a game which is nearly the same.

Other areas of intellectual property laws don't work like that. If you have a patent on a machine or an industrial process or a drug, it is your idea that is protected. Nobody can put a functionally identical or very similar machine, process, or drug on the market just using a different name. At the very least somebody wanting to copy your idea will have to pay you royalty fees. The general idea behind patents is that such protection encourages innovation, because you don't have to worry that you spend all that development cost only to get underbid on the market by a cheap clone.

Of course no idea is perfect, and patents have been accused of suppressing competition and leading to price gouging. There is some value in having lots of very similar games around, because it improves the chances of one of them being to your liking. And if you run out of content in one game, you can switch to a functionally identical one with different content. On the other hand game companies display a certain degree of laziness, and at the moment tend to rather produce lots of clones instead of going to bother with coming up with new ideas.

So I do think at least *some* idea protection for games would be good. You shouldn't be able to get a patent that gives you a monopoly on all shooter games, but you should be able to fight blatant clones other than with sarcasm. Reallly, there are enough similar games around that encouraging a bit of innovation in game design instead of lazy cloning would be worthwhile.

I have sympathy for the idea.

But part of patents is that the ideas become public domain with limited time e.g. 17 years to monetize it. Which may be too short for expensive drugs but is an eternity for ephemeral software.

Imagine indie game companies if EA or ATVI or MSFT could send a cease and desist letter to them. What indie goes ahead if there is a chance for a six digit legal bill?
Patents for industrial processes are an inappropriate comparison. Games are closer to movies, books or music, all of which have well-established and functioning legal protection for intellectual property.

As someone who works in a bookshop I can tell you that almost any successful popular fiction will immediately spawn a whole slew of extremely similar versions, right down to the setting and the cover design. The content of entertainment media does not constitute an "invention". It's merely putting existing factors into a particular order.

If a game introduces novel software design elements there are potential patent protections for them and the naming and imaging of things is covered by copyright law. Extending that protection to basic ideas and concepts would be unequivocally detrimental to the interests of both creators and consumers, which is why it's not done.
How come they manage to stop this sort of thing in music. See "Bittersweet Symphony" as an example
Disagree. Boardgames especially thrives on the fact that mechanics are not subject to copyright - it allows for an iterative and communal design process that has given us lots of great games over the last decades. The same is largely true for computer games, and where would Blizzard be if Everquest, Dune II or Magic: The Gathering were under patent?

The protection of trademarks is more than enough - being first has a real value, and a trademark allows you to be the only one to use the name(s) that are connected with that.

Cloning games gives you quick and easy Income, but the great hits are those which takes previous games and improve upon them. Patents on game design would be the death of innovation in gaming, not help it.
There is a problem with that: designing a scientific process is an extremely expensive operation, while cloning the complete one is cheap. With artwork it's even worse as you can copy a digitalized artwork with a click to get an identically good.

With games it's the opposite: making the idea is a trivial work, while coding the game, creating the animations, painting the background is a huge work. So even a "clone" game (that has no different functionality) has 99.99% the work the original one had. The original game has a huge advantage: it's there first, so by the time the clone is up it has playerbase. If I'd publish a perfect clone of WoW, I would have hard time getting customers as WoW players would have to leave their friends and give up their characters to start a lvl1 in my clone. So clones only survive by being much better implementation of the same idea. WoW is better than EQ2 and judging by the screenshots, the Zynga-Tiny Tower is prettier than the original. Do you want such improvement be impossible?
It's like with books. Nothing can stop someone from, say, writing a Game of Thrones clone, changing the names and publishing.

How close would be too close? The Total War series has lots of elements of Civilization or other 4X games. The Warhammer video game series is a lot like X-Com, which isn't that different from that mercenary game whose name I can't recall. Hell, World of Warcraft is a huge violator of this. It exists because their deal for the Warhammer IP fell through, it's basically EverQuest with relatively achievable goals.

Point being that somebody would buy up the rights to a ton of old games and then start filing nuisance lawsuits. On the whole game companies are probably better off letting 2% of the market go to clones than they would be giving up the right to plagiarize a bit.
One might like to see protection of ideas in some instances, but how would you write the law in terms that did not cause bigger problems? With copyright it works because breaches are relatively unambiguous and easy to demonstrate. With patents, the breaches are harder to prove but due to the high barriers to entry, more resources can be devoted to a given challenge. Game ideas don't seem like they would fit in easily. If you tried to mimic the patent system, you'd maybe help someone who was successful with a new idea, but people with just new ideas would not be able to afford patents, and we'd certainly see lots of exploitative 'game idea patents' aimed at milking developers on tenuous legal grounds. [And unlike copyright and trademarks, which anyone can avoid by making new names and assets, these would actively inhibit developers from bringing new ideas to market.
Game mechanics are patentable, though. For example, Wizards of the Coast has a patent on the "tap" mechanic of Magic: the Gathering. You won't see any other CCGs use that specific mechanic. The whole kerfluffle between WotC and Hex was because WotC thought Hex was too similar to Magic, mechanics-wise.

I think the cost/benefit of the patent is too high for most companies, though. Most games simply do not have a long enough lifespan to make their mechanics worth patenting.
Another example of a "mechanic" patented was mini-games on the loading screen, which literally just expired a couple weeks ago.

Should game mechanics be patentable is another question entirely. I don't think games would have had the rapid iteration and innovation they've had over the past 30 years if developers had to deal with patents. Accidentally infringing, or nearly infringing, can be a death knell for a small company as they don't have the funds to fight the accusation in court. Entire genres might not exist, or be locked down by a single company.

Copyright and trademarking are both still powerful, and protect assets and company image.
You can patent a mechanic, but it's useless. Wizards of the Coast tried to patent "tap", and now everyone else calls rotating cards "exhaust".

The good news is mechanics should not be patented. Someone made a clone of XCOM - so what? They will make far less money, because implementation is as important as the idea. Remember the time everyone cloned StarCraft? And then GTA3? Where are those clones now?

On the other hand, if the mechaincs could be patented, there would be no StarCraft, because it builds on ideas of C&C. This would lock video game industry into strict series, every each one belonging to a big publisher (of course to secure the rights to a mechanic you have to be rich and influential to begin with). The game series wouldn't be able to change or evolve, because all the rights to all other mechanics belongs to someone else, and no indie games like Thea or FTL or Card Hunter would be possible, because they are a creative rehash of things we've seen somewhere else.

Right now at least the developers who can implement the idea better than others get more money, so you can't just make any RTS and then sue everyone else who tries. And usually the author of the idea can implement it far better than someone who just stole it.
Copyright covers images, it even covers recoloring.

The ability to block off ideas and mechanics would massively shutdown innovation. The only winner is the lawyers. Ooh you built a better mousetrap, you infringe our patent for catching animals on the internet, our trademark for better, our copyright for images of mice.
The indie game dev industry of functionally-identical rogue-likes, walking simulators, bullet-hell shmups, and 2D platformers (with or without novel physics mechanics) would be decimated overnight. The TRUE indiepocalypse.
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