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


• Trade marks and copyrights


• 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.”


T-68/11, 6.6.2013 – Watch dials


Expressionless idea → Idealess expression

(Source: https://news.artnet.com/art-world/maurizio-cattelan-banana-explained-1732773)


• Merger doctrine: Scenes that must be done.

• Public domain: „And if they have not died yet, theyare still alive.“

• Derivative works


„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"


Interpretation of the "rules for playing games"

26

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)


Schemes, rules and methods for playing games

Traditional games

27

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.



Contemporary games

28



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)

29


Exclusion from patentability - Game Rules

Any technical means convey technical character to a game

30

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


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


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

32


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


Electronic multi-play poker with face-up hand in

bottom row (T0336/07)

34

DECK 2

DECK 1




35

DECK 2

DECK 1




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."


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


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

38


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


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


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


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

42


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



▪ 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



▪ 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


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


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 ....


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


▪ 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


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

video gaming and ip: how to play the game · are meaningful only in gaming context, perceived (or...

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