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.

Game Design: The Eben07 Card Game

I have been tossing around game design ideas ever since I first tried to make my own "custom Talisman" expansion back in 2001. [Note: Yes, I actually tried to make an expansion to Talisman, 2nd Edition, back in 2001. It did not work out. The world is better because of it.] Every few years, something would spark my interest again and I would write a few notes but I never really got especially far with it. As I became more involved with the modern tabletop gaming scene, I began to realize that a lot of games had already been made. A lot of the things that I thought the world needed had been done in one way or another.

Fast forward to December 2011. One of my biggest frustrations with game design is that I like having an idea for the aesthetic. Specifically, I like having art. Two old friends of mine were well into their fourth year of publishing a webcomic, Eben07. The comic is about a government agency, the Intelligence Cleaner Agency, responsible for cleaning up after supers spies like James Bond. I started thinking about it and I realized that the comic would be a great theme for a simple card game. Furthermore, I had easy access to quality art assets. From there, I began designing.

Eben07: The Card Game

The basic idea of the Eben07 card game is that each player represents one of the different factions or organizations featured in the webcomic. These different factions are trying to complete various missions which are worth points. The missions represent any number of different things featured in the comic, from raiding Countess Vampirexia's castle in Eastern Europe to hiding a very specific Soviet ballistic missile submarine in a river.

Raid on the Vampire's Castle!

Each player plays a faction, represented by a deck of 20 cards. Each faction has different strengths and weaknesses, with the idea that each deck plays towards different strategies. While one faction may focus on recycling cards in their discard pile, another faction might focus on synergistic card assignment.

The Assignment Phase

Players draw a hand of cards from their individual deck representing different agents and minions of the organization. During the game round, players take turns assigning cards to missions (generally, face-down in a single pile). Some cards have the "Action" keyword and can be played on a turn to achieve a specific effect, like drawing additional cards or pulling cards out of a discard pile. Inspired by Saint Petersburg, I also included the idea that a player could pass but still stay in the round. The round would continue until every player passed in succession.

Ninja Dan reacts.

The goal with assigning cards to missions is to have the more of the appropriate skill than any other player. Missions can be either Cloak & Dagger missions (indicated by white text on black background) or Mop & Bucket missions (indicated by black text on white background). Each card has skill numbers in the upper left and right corners that match up with the color-scheme of the two mission types. Ninja Dan, an important card in the ICA faction, has 3 Cloak & Dagger skill and 2 Mop & Bucket skill, making him slightly better at those Cloak & Dagger missions.

Players are not required to play all of their cards and may want to retain some cards in their hand. This allows for a certain amount of hand grooming for the next round. Some cards have the "Reaction" keyword which means they can be played in response to some event. For example, Ninja Dan has the Reaction ability to "Cancel any card played as an Action or Reaction." Some Reaction abilities get more sophisticated, such as canceling reveal effects or forcing players to discard cards that they assign to missions.

The Resolution Phase

One of the more powerful
Reveal effects...

Once the Assignment Phase is over, the game moves to the Resolution Phase.  In the Resolution Phase, players would go to each mission, one at a time, and reveal the cards assigned to it from top to bottom. I realized that an important gameplay element would be to take advantage of that revelation. Some cards have the "Reveal" keyword which means that the card does something when turned face-up on a mission. Some of these are simple effects while some of them get quite involved.

Perhaps the most powerful Reveal effect in the game belongs to the Countess Vampirexia. As a vampire and leader of her faction (referred to as the Cult of Vampirexia), it made sense that she should be relatively powerful. When her card is revealed on a mission, the Vampirexia player is allowed to discard any other face-up card assigned to that mission. Thus, any card already revealed (or, assigned face-up) would be vulnerable to the Countess' attack.

Once all of the cards assigned to a mission are revealed, each player totals the mission-appropriate skill of their cards assigned to the mission. Whichever player has the most completes the mission and puts the card into their scoring area. Once each mission is resolved, one at a time, the game round ends. Assuming that no player has achieved the victory condition (some number of points, say 12-15), players draw up a new hand of cards and deal out a new set of mission cards for the next round.

Development Continues

The Eben07 card game is something that is still in development and everything here is subject to change. Right now, it is a 2-4 player game that plays in roughly 30-45 minutes. With every playtest iteration, I learn more about things that work and things that could use improvement. Hopefully, in the next few months I can go into greater detail about the different factions and how they work in the context of the game.