[Gamesbriefers] Could DeNA’s patent application stifle innovation?

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Question:

The team behind The Drowning, DeNA’s high-end first person shooter for tablets, say that they have invented gesture controls for a touch screen FPS that “works well when you get used to it”. They have applied for a patent for the control mechanism.

Is this a good use of the patent system, or are DeNA using the over-broad US IP regime to stifle innovation for years to come?

Answers:

Darren Jobling COO of Eutechnyx

Patents have always been used as an additional revenue generation mechanism by the old guard within the games industry. Nothing to do with innovation – purely to do with raising cash and hindering competitors.

Things have got so bad it’s now very difficult to obtain patent infringement insurance in the UK for game developers.

It’s sad to see ngmoco take this route, but then again, if it’s innovative, Eutechnyx would do exactly the same thing…

Will Luton Games consultant for mobile, social and F2P

How many gameplay patents have ever been successfully enforced? Ghost cars? Mini-game loading screens?

If this is as groundbreaking as it claims to be, which I doubt it is, I’d like to see them enforcing it against every kid with a pirated copy of Unity and a dream.

These kind of patents don’t help anybody. We don’t need them.

Teut Weidemann Online specialist at Ubisoft

Patents are not used to hinder others using the same technique. They are used to implement an ordered way using protected ideas without overpaying or getting ripped off.

Patents are here to protect our creative work. We are not Koreans. So go Ngmoco, if anyone can challenge their patent then so be it.

Harry Holmwood CEO at Marvelous AQL Europe

I don’t much like the use of the patent system for this kind of thing.  At the same time, we didn’t like Zynga copying gameplay mechanics from other people, and many wished there could be some kind of ‘gameplay IP’ which was somehow protected by copyright.  So, some kind of protection against blatant copying is maybe desirable, the patent system is not the way to achieve it.

The problem with the patent system now is that makes everyone defensive, and hands control, over time, to those with the deepest pockets who can afford to file and litigate these patents.  Pretty much the opposite of the original intention.  The only people who gain are the lawyers.

Simon Oliver Designer at HandCircus

I agree with Harry and Will – this is problematic and it is disappointing that DeNA are looking to patent the mechanic. From lodsys’s IAP patent to Soverain’s “Shopping Cart” patent (recently crushed by Newegg ) software patents are far more a hindrance to innovation than protection and the system is overwhelmingly weighted to larger players.

Interactions and mechanics shouldn’t be patentable. I think this situation is very different to the Tiny Tower/ Dream Heights situation in that this is about a fundamental building block rather than a composition of elements (Dream Heights being a 1:1 clone of almost every element of the design). Given the fact that the Drowning mechanic builds on similar, unpatented mechanics (movement is implemented in the same fashion as Epic’s original Citadel demo), it seems inappropriate to attempt to patent a mechanic that depends on previous unprotected innovation.

On the other hand, perhaps this was more of a warning shot to other developers planning to implement the control scheme before they launch, as opposed to something that they intend to rigorously defend if the patent is awarded?

Patrick O’Luanaigh CEO of nDreams

I’m not a huge fan of software patents – I remember in a previous role having to find (successfully, I believe!) a prior example of the Atari ghost-car mechanic being used, and it felt like they were stifling a fairly obvious development (in that case, replaying a previously recorded set of actions).

I’m worried about DeNA’s patent, particularly if they try to use it to get payment for obvious control schemes, such as ‘click somewhere on a screen to move the character to that position’, which would be ludicrous, since that is the single most obvious method of moving characters in a 3D environment on a tablet/touchscreen device.

Having said that, if they have spent time and money coming up with a very clever control system that has genuinely never been used before and is highly innovative, I don’t have a problem with having a system to protect that. The ‘two fingered aim’ idea seems more like that to me.

I just worry that there isn’t a “unique and non-obvious” requirement/test in the US patent system…

Mark Sorrell Development director at Hide & Seek

I disagree with [Patrick’s point about protecting the control system].

Such developments should be done in the service of the game, not the company that made the game. I disagree that being unable to protect such a system would result in fewer of them being created. Creativity will always manifest itself, and in greater quantities with more freedom to build on what already exists.

It’s an FPS, they sure didn’t create that idea. So why should they get to steal their little contribution away from the rest of us, when they’re happy to plunder the creative commons?

Rent seeking behaviour is bad for everyone bar those seeking the rent and should be neither condoned nor, ideally, permitted.

I’m very much on the ‘no to patents’ side of this argument. Nothing is invented without prior work. It’s impossible to do so. We all build on what has come before. No-one here invented the ‘computer game’. Or the ‘game’. Or the in app purchase or etc.

There is a difference between copying something wholesale for commercial benefit (as in copying an entire game, assets and all) and taking some element of a game and building on it. It’s a fine line, but it’s an awfully long way away from a control scheme for a genre of game, which by definition, is an element, not an entire product.

We should, being at least familiar with behavioural economics, know well that money is an inhibitor of creativity, not an incentive. So these kinds of patents do us all a disservice. I blame DeNA, certainly, but more I blame the system they exist in, which misunderstands human motivation and restricts creativity in the name of promoting it.

I will very much be hoping for their failure here, and hoping more for fundamental changes in the law (that goes a lot further than this, when it comes to copyright, patents and so forth.)

Teut Weidemann Online specialist at Ubisoft

There are no RTS on the consoles although it is a hugely popular genre. The reason is that the controls are hard to port to console.

Imagine you have that idea. And you launch and everyone else rips it off? Even before launch as their production budgets are higher?

What would you say? Give up? Or protect yourself with a Patent?

Patrick O’Luanaigh CEO of nDreams

How about 12 or 18-month long patents for unique game mechanics? Long enough to get a game out and prevent a genuinely new or clever mechanic being cynically stolen before you’ve had a chance to benefit from it, but short enough not to hinder games building on previous innovations and hopefully prevent patent trolls.

Teut Weidemann Online specialist at Ubisoft

Again, Patent doesnt mean you are the only one able to use it. Patent means you can use it but need to pay the other one a fee. Thats it. Patents don’t mean monopole on the idea, it means a way to share it without being ripped off.

The patent troll cases you list are all cases of companies using something without paying – where someone has a patent (valid or not)

Nevertheless, in an industry which is fast changing the patent times need to be adjusted yes. But 12-18 month is not a solution considering how important IP/Games are.

Mark Sorrell Development director at Hide & Seek

I don’t see why you should be able to do even that. If you’re worried about your RTS control scheme being ripped off – it that’s the only thing that would differentiate your product sufficiently to sell it – then make your game better.

We don’t play technology, we play games. There’s far more to a good game than its control scheme.

It’s rent-seeking, anti-innovative, anti-competitive behaviour, and the principle effect of it is to restrict competition to those who can afford to pay the patent fee, rather than those who have the best, or most competitive product.

Tadhg Kelly Creative director at Jawfish Games

It’s a bit of a boo-hiss move, of course, as all developers learn from one another and in a sense contribute to the greater understanding of what works and doesn’t through being inspired by each others’ work. But beyond that, it’s also a very near-sighted move.

Had id locked up the FPS shooter back in the day, for instance, then maybe it would seem to some that they would be zillionaries by now. But I would argue that it would have constrained the number of possible releases in that market to almost zero, which in turn would have killed the genre.

No single studio has the wherewithal to serve an entire genre all by itself. Companies that invent games *need* others to copy them, to spread the game genre itself around so that it becomes a known thing. Their job is not to be the only dude on a self-made island, but to becomes king of the mountain by maintaining the premium position whose competitors games reflect upon them.

On a final note, the control system doesn’t sound all that hot on the face of it.

Ben Board Senior product lead at Boss Alien

Not my specialist subject, but it seems to me that it’s a system with a logical basis – if you make something genuinely novel that’s the product of lots of unique work, your cleverness deserves recognition and some protection – but poor implementation. It’s pretty bonkers if people can create nothing more than logical, easily-discovered extensions of existing ideas and rush to be the first to lay that legal bear trap. Of course that stifles innovation more than it protects it; nothing wrong with paying to borrow a truly original idea, but the legal overhead of searching for all conceivable patents relating to your own endeavour, while the trolls lurk in the shadows, is bound to slow the pace of progress to some extent. Maybe there’s a better approach. I’m not qualified to suggest what it is, but nor am I the first to suggest one would be valuable.

Totally agree with Tadgh – your game’s success is vanishingly unlikely to succeed because of one patentable idea. Succeed by making it better and better, while other games also learn from and improve it; not by finding the lowest, crumbliest bit of wall your design ladder will reach and then kicking it away.

Andy Payne MD at Mastertronic

Patents start as a good thing for inventors and always seem to end up as a bad thing for everyone else except the patent holder who may or may not be the inventor. The fact that Nortel went bust but their assets were sold for $4bn in a patent auction beggars belief. IP and patents in a digitally connected world need some proper discussion. The laws are not fit for purpose in all cases.

I remember as a kid watching Whacky Races, Professor Pat Pending was the mad inventor. I saw the joke as ‘Pat Pending’ was stamped all over toys and games I had. And keeping with the TV show references, whist ‘it’s business’ as the ex member of Creme Brûlée in the League of Gentlemen said ‘it’s a shit business’ .

Have a good day. You can’t patent fun can you

Jas Purewal Lawyer at Osborne Clarke

The games industry loves to hate patents (especially software patents), but I’m afraid usually it misunderstands what patents do, what a patent is able to protect and what the differences are between patents and other forms of IP. It’s important to bear these things in mind before passing judgment on any one software patent*.

As far as the DeNA patent application is concerned, if granted it would only grant protection for the gesture mechanic – it wouldn’t grant any rights over the game itself or the game genre, nor would anyone else in the industry allow it to in practice, so talk about patenting the FPS or the RTS is rather farfetched. More generally, despite all the doom and gloom about software patents, so far there is no evidence they have actually harmed hardware, software or games development thus far; at best we can speculate on their impact.

I’m not a fan of extolling the virtues of IP protection just for the sake of IP protection, and I recognise fully that for my clients winning and keeping their audience is as important as protecting the IP, but let’s not lose sight of the fact that, from a hard-nosed business and legal perspective, IP protection is still as important as it ever was. Holding and keeping your IP is key to buying or selling a business, attracting investment, expanding overseas or securing business partners. For many businesses, software patents are a part of that – whether we like it or not.

*I wrote a quick guide to patents, games and Lodsys on my blog a while ago here.

Harry Holmwood CEO at Marvelous AQL Europe

I think the point was, if id had patented the ‘move a mouse cursor over an onscreen character to shoot it’, and Westwood patented the basic mechanic of the RTS, (or Nintendo patented the mechanic of ‘press a button to make an animated character jump’) the FPS and RTS genres would still be patent protected, which surely can’t be a good thing? Patents are/were useful to protect inventions from being ripped off, when bringing an invention to market may have required manufacturing plants, materials etc.

The trouble with software mechanics, is actually creating them is trivial. Any of us could sit down for a week and design 50 different, new, potentially patentable things you could use a touchscreen for. That we could then stop anyone else using them (or at least demand money from them for using them) is just silly.

Jas Purewal Lawyer at Osborne Clarke

As I said before, you can’t patent the basic mechanic of the RTS or any other game genre. I hear what you’re saying that by patenting individual features of a game genre you could achieve death by a thousand cuts, but that’s not how the patent system actually works. To start with, the patentable invention needs to be novel, capable of industrial/technical application etc, not opposed by anyone else and you have to have the substantial time and financial resources required to obtain the patent. Then, once you have it, you have to actually successfully enforce it against third parties. So yes, creating software which is patentable might be trivial, but actually patenting it is far from trivial.

The point is, obtaining and defending a patent is not nearly as straightforward as people think. That’s why the games industry, to my knowledge, has never actually seen anyone seize control of a particular game technology or genre or mechanic via patents, nor has anyone locked anyone else (be they a big publisher or a tiny developer) out of the market.

Obviously this has nothing to do with the question of whether software should be patentable or not. My point is that the current position, while it isn’t great, also isn’t as bad as you might think.

Harry Holmwood CEO at Marvelous AQL Europe

But isn’t the DeNA patent ‘the basic mechanic’ of this game? Thus, preventing it becoming a genre without everyone licensing it?

Your point re cost is very valid – patenting a new mechanic is well out of the reach of a small developer, so passing control up to those who can afford the ridiculous costs involved.

I’ve been involved in patenting (and defending) software and hardware inventions in the past and, in all cases, I think it was a waste of a lot of everyone’s time and money. I’m sure there’s the occasional case where they’re useful but I have yet to see one in our industry.

Bernard Chen User Experience Director at Ubisoft

I’m not sure the enforceability of the patent comes into play. If DeNA threatened a startup, indie developer, or small company with a provisional or pending patent (it’s still in progress and not complete yet), that small developer would be best off treating the provisional patent as the real thing. It’s not like patent suits frequently go to court – DeNA could get the dev to stop using the gesture or exact a licensing fee.

Jas, as an expert in this field, what’s the precedent for someone patenting a gesture? That’s the part of this conversation that rubs me the wrong way. I get that it took R&D to develop this gesture so there’s some IP there, but gestures are the building blocks of the touch UI. It’s like someone patenting a sound on the phone.

Jas Purewal Lawyer at Osborne Clarke

You’re quite right that someone (in any industry) with a pending or actual patent *could* use it to threaten smaller businesses (as the small business would see it) or defend the expensive investment they’ve made in whatever the subject of the patent is (as the patent holder would see it). You’re also quite right that the small business would be well advised to treat it as the real thing. But that can just as easily happen with other forms of IP or other legal rights. For example, some people disagreed with Bethesda seeking to enforce its “Elder Scrolls” trade mark against Mojang over the “Scrolls” game. Any number of big and small developers and publishers have taken action against others for copyright infringement. Bethesda (coincidentally) sued Interplay to stop it making a new Fallout game. Just because a patent or any other legal right could be used to sue someone else, doesn’t automatically make it bad. It all depends on the context.

More than a few gesture patents have been or are being granted to the mobile manufacturers and sometimes are part of the ongoing mobile lawsuit wars. For example, big players like Apple, Samsung and Google have been involved in claims relating to gesture patents among others.

One closing thought: early internal combustion engine technology was patented. The first hoover was patented. The computer on which I’m writing this is full of patented hardware. Do the original patent owners still hold the world to ransom?

Harry Holmwood CEO at Marvelous AQL Europe

A big part of my concern is the length of patents in a software context. The speed at which innovations can now be commercialised and gain global traction (and indeed peak and fall) is now such that protections lasting more than a a year or two seem excessive. That wasn’t the case when the Hoover, combustion engine etc were created. Go back 20 years from today and the only people who’d even heard of ‘The Internet’ were computer scientists, and even then we couldn’t dream of what would happen in the next couple of decades.

I remember a lecturer of mine at the time doing some pioneering stuff with with multimedia, information access, hyperlinking etc. 20 years ago. Imagine if she’d patented it – she’d be in charge of the web still, and our world could be a very different place.

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