Legal Issues in Gaming: Patenting your Game

When people look to legal protections for their game designs, copyright and trademark tend to be the most obvious choices. However, as previously discussed, the actual rules of the game do not actually fall under copyright law. Luckily, the United States has established the law of patents to help protect things like the rules of a board game.

Patents: Protecting the Process

As I previously discussed, the Federal Constitution grants Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]" From this, Congress can grant inventors rights over their inventions. This is the area of intellectual property law known as patents.

Title 35 of the United States Code governs patents (in the United States of America). Generally, patents are applicable to scientific inventions, which includes machines, compositions, and even processes. Specifically, patent law protects the following kind of inventions:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

35 USC §101. Looking at the definition of patentable inventions, it sounds like patent law is meant for things like new kinds of engines, chemical formulae, or other "scientific" inventions. Yet, there is a long history of the "process" of the rules of a game being considered and protected under the patent law or the board game being an "apparatus" protectable under patent. But is it the right thing for your game?

Early Board Game Patents

One of the earliest board game patents is the "Landlord's Game," a board game apparatus invented by Lizzie J. Magie in 1904. Although the patent includes multiple claims, they all center around a "game-board, having corner-spaces, one constituting the starting-point," with "intervening spaces of different denominations" that are "distinguished by coloring or other marking," and a "series of movable pieces having reference to the different divisions upon the board." It also includes a "chance device to control the movement of the pieces" and "ticket representing money, deeds, notes, mortgages, bank mortgages, charters, legacies, and luxuries" for use with the game.

Hey! That sounds familiar!

Interestingly enough, Lizzie Magie (later Lizzie Magie Phillips) filed another patent in 1924 for "The Landlord's Game." This patent was very similar to the original but with a variety of novel additions and features to the original patented claims. So how is this relevant? Well, Charles Darrow, a heater salesman from Germantown, Pennsylvania, would eventually file a patent in 1935 for:

In a board game apparatus a board acting as a playing-field having marked spaces constituting a path or course extending about the board, said path affording a continuous track for the purpose of continuity of play, certain of said spaces being designated as by position or color as to constitute a distinguishable group, there being a plurality of such groups each differing from the others and each having its space adjacent on the same side of the board, the apparatus having indications of the rentals required for the use and occupancy by opponent players, of spaces of one or more such groups, which rentals are subject to increase by the acquisition of an additional space or spaces of the same group by the same individual player, thereby making it possible for the possessor to exact greater payments or penalties from any opponent resting or trespassing thereon.

U.S. Patent No. 2,026,082 (issued Dec 31, 1935). That's just the first claim of nine in his patent. His patent was transferred, along with all other associated IP rights, to a company called Parker Brothers. Parker Brothers began marketing the game, known as Monopoly, and it became the most popular game in the United States. Darrow became the first millionaire game designer in history. Nobody seemed to care that his "invention" was suspiciously similar to two previous patents.

Since the early days of the 20th century, many different people have filed patents for board and card games. Games such as the Lawsuit board game, the What's For Dinner board game, a Gangster board game, and even a "trading card game" by a small Seattle based company. The real question that remains, though, is whether or not it is worth it to patent a board or card game?

It's a Lawsuit!™ (Patent #6,805,351)

Board Game Patents: Nobody Cares

Normally, when you file a patent, the patent examiner who reviews it ensures that your patent is a novel, non-obvious invention that was not in existence previously. Usually, this involves a review of existing patents, published writings, and a host of other information to verify that the patented invention is a legitimate new invention. Yet, in the world of board and card games, the process has a certain peculiarity to it.

Consider the original Monopoly patent. That patent was issued despite Magie's existing patents with similar rulesets. A great deal of research has suggested that other games even more similar to Monopoly than Magie's game had been in existence up to a decade prior to Darrow's patent. Yet, despite this, Darrow's patent was issued. Although one patent attorney told me that the key to Darrow's patent was clever writing to differentiate it from Magie's patent, given the number of patents that have been issued since then that are remarkably similar, it seems that the USPTO just doesn't care about board game patents.

That being said, what does a patent grant the holder? Normally, a patent is a monopoly to create and distribute the protected invention. Somebody who infringes on the protected invention is liable to the holder of the patent. But has this ever happened? Although no expert, I could only find a single reference to a patent infringement suit for a board game (brought by Parker Brothers in 1935) but it was settled out of court. Patent infringement suits tend to be costly and, as it ends up, usually involve a trip to the Eastern District of Texas.

Fear the patent on turning a card 90º (to Tap).

As a more modern example, despite all of the fear associated with Wizards of the Coast's patent on turning a card 90 degrees to indicate exhaustion, there seems to be no indication that an infringement suit has ever been brought along those lines. This could have something to do with the fact that bringing a patent infringement suit always raises the potential for having the patent declared invalid by the court. Or, it could be based more on the fact that a majority of tabletop game developers lack the "deep pockets" that one normally looks for when bringing suit. Either way, a board game patent holder has a lot of reasons to not pursue a patent infringement suit.

Getting a Patent: Costs and Benefits

At the end of the day, is it worthwhile to patent a board or card game? Since even the simplest patent can easily cost over $10,000 to file, your typical tabletop game designer really has to consider whether or not it is worth it. Most of the biggest games in tabletop gaming, including The Settlers of Catan, Dominion, Carcassonne, and Ticket To Ride were published with no patent protection. All of these games were extremely successful and continue to do well. Contrast this with the bulk of board and card games that have patent protection. Most of those games never even got published or, if they did, saw little overall success.

There are other reasons not to pursue patent protection for a board or card game. The gaming community tends to react very negatively to heavy-handed legal action. This could result in a lot more negative publicity than expected. Leaving the game rules open to the public is a way to build a larger community, as was witnessed with Dungeons & Dragons and the Open Game License. A game designer seriously interested in potentially seeking patent protection should consult not only a patent attorney but also a community manager to weigh the costs and benefits associated with such an action, because the last thing you want is to doom your game in an effort to protect it.

The statements made in this article are the opinions of the author (and the author alone) and do not constitute legal advice. Comments posted on this article do not create an attorney-client relationship. Recommended listening: Episode 16 of the Law of the Geek podcast, available at http://lawofthegeek.com.