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Patent Arcade

In the business of video games, intellectual property protection is critical to success, and Patents, Copyrights, and Trademarks are the bricks with which your IP portfolio is built. The Patent Arcade is the web's primary resource for video game IP law, news, cases, and commentary. Editor-in-Chief: Ross Dannenberg, Esq.

Article: Hey, that's MY game!

Posted by Ross Dannenberg (Gamertag: Aviator) on Wednesday, February 27, 2008.

Ever wonder what the basic principles are for protecting your video game based on intellectual property law? Steve and I wrote this article, recently published on Gamasutra, that provides a brief introduction to what you need to know to help protect your game and your brand.

Download PDF version.

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Article: Film Sanitization Issues

Posted by Ross Dannenberg (Gamertag: Aviator) on Friday, June 15, 2007.

I recently wrote a short article regarding Film Sanitization, the practice of removing objectionable content from a movie without the copyright owner's consent. Groups remove the sex, violence, nudity, language, drug use, etc., to create versions suitable for "families and children." This raises various copyright issues, discussed in my article, which you can download and read here. The initial conclusion is that those who sanitize films without the copyright owner's consent do so at their own risk.

Similar issues could very well arise with respect to video games, except that it's harder to remove just the objectionable content from a video game without the help and assistance of the game's developer, as evidenced by the "Hot Coffee" exploit for Grand Theft Auto: San Andreas. In any event, some issues to ponder, and you might just find the attached article an interesting, if brief, read.

FilmSanitization.pdf

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FEATURE: IP Basics & Publications

Posted by Ross Dannenberg (Gamertag: Aviator) on Sunday, January 21, 2007.

Still trying to wrap your head around intellectual property? The Patent Arcade provides the following video game IP resources for your use. Please keep in mind that all articles and publications are for informational purposes only, and are not intended as legal advice for any given scenario. Always consult an attorney with fact-specific questions if you have a specific scenario you need assistance with. I can be reached at (202) 824-3153, or rdannenberg@bannerwitcoff.com, if you would like to discuss a specific issue or need legal advice. -Ross Dannenberg

The Publications:

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Publication: Top Ten Video Game Patents

Posted by Ross Dannenberg (Gamertag: Aviator) on Friday, January 19, 2007.

TOP TEN VIDEO GAME PATENTS
by Ross Dannenberg & Steve Chang

When the editors at Gamasutra asked us to prepare a list of the top ten video game patents, we initially thought "Hey, no problem, that will be easy." As we’ve dug into this in a little more detail, we realized that what we signed up for was no easy task, because there are quite a few issues that make it difficult to simply whip up a list of the top 10 video game patents.

First, what makes a patent a video game patent? Is it a video game patent if it describes video game play methods? What about hardware? Audio/video processing techniques? There are endless patents that may be utilized in some form or another when playing a video game.

Second, what determines whether a patent is a good patent or a bad patent? Its coolness factor? Financial worth? Something else entirely?

Third, how do you compare patents that cover completely disparate technologies from completely different times? How do you compare the original Pong patent with a patent for giving "kudos" based on driving style? The coup de grace then is this: how do you rank patents that each derive merit from a different one of these metrics?

The fact of the matter is you can’t, because there are many ways in which patents can be valuable. Some patents are widely licensed and bring lots of licensing revenue to its owners; other patents introduce a key technological advance that becomes an industry standard; and other patents possess a certain je ne sais quoi, the “IT” factor of a really neat idea.

Needless to say, given these complexities, this list is fairly subjective, and we would be blown away if no one disagreed with us...

Read the entire article at Gamasutra.com.

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Publication: Developer Guidelines for Preserving Patent Rights

Posted by Ross Dannenberg (Gamertag: Aviator) on Tuesday, June 27, 2006.

As promised in my previous post regarding a general introduction to IP, linked below you will find a previously published article regarding the preservation of patent rights. This article may be particularly useful for software developers and programmers working on video games and video game software. As you may know, certain actions that you do or don't take may have an adverse affect on your patent rights, and this article discusses those issues and provides a more in-depth introduction to patent law and patent rights in the United States (with a brief introduction to foreign patent rights). Due to the length of the article, it is available in PDF format only. Happy reading.

DOWNLOAD ARTICLE HERE.

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Publication: IP Primer

Posted by Ross Dannenberg (Gamertag: Aviator) on Tuesday, June 13, 2006.

We've fielded some inquiries regarding materials providing an introduction to intellectual property, as well as more basic information regarding patent law in general. Below is the text to an article that Jordan Bodner and myself wrote as a very high-level introduction to intellectual property. You may also download a copy of the article here.

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This article serves to provide a general introduction to intellectual property and how it can be important for your business. Intellectual property, or “IP,” is not property in the same sense as real property or chattels; it is not tangible. However, one can buy and sell IP just like other property, just as one might sell a house.

So what are we talking about when we refer to intellectual property? Intellectual property rights are a collection of rights primarily governed by patent, copyright, and trademark law. Each of these rights serve to motivate inventors and authors to continue to create IP by providing limited protection against copying of trademarks, inventions, and works of authorship. For example, without patent protection, inventors would keep inventions secret, or eschew research and development altogether, for fear that others would copy their inventions and take profits that otherwise would be reaped by the original inventor.

A trademark is any name or symbol indicative of a source of origin of a product or service. It should not surprise you to learn that your business already has a trademark — your business name, and most likely also the brand name of your product or service. A trademark is one of your most valuable business assets, because it represents who you are and how consumers recognize your business. Trademarks are perhaps also the most recognizable form of IP. You can hardly drive down a major road without encountering a sign for a McDonalds® restaurant or a sign advertising Coca-Cola® brand soda. Many consumers purchase goods and services based on name recognition alone.

There are two means by which you can protect your trademark from being copied. The first is through state trademark laws. Each state offers trademark protection based on the use of the trademark in that state. The second (and more effective) means is to register the trademark. In the U.S., a trademark is registered through the U.S. Patent and Trademark Office (USPTO), which provides nationwide protection. Registered trademarks offer advantages over non-registered trademarks. Once a trademark is registered, no other entity can use any name or mark that is identical to or is likely to cause confusion with your registered trademark, anywhere in the U.S. An exception arises where the other entity proves that it was using its trade name or mark prior to your trademark registration, in which case the other entity might have limited rights to use their name or mark in their geographic location.

Patents are another form of IP that protect inventions from being copied. A utility patent provides protection for any new and useful invention such as a new machine, article of manufacture, computer program, or process; a design patent protects new ornamental designs (e.g., the aesthetic appearance of manufactured goods, computer icons, graphical user interfaces, etc.); a plant patent protects new asexually reproducing plants (e.g., roses). All patents include a description of the invention as well as one or more claims that define the legal metes and bounds of the invention applied for. Determining these bounds accurately is important, because a patent provides a limited but powerful monopoly on what is claimed. That is, a patent prevents anyone other than the owner from making, using, selling, or importing an item, or performing a process, that is encompassed by its claims. Those acts would be considered patent infringement. A claim drafted too broadly may be invalid for attempting to encompass what is old or obvious. A claim that is too narrow may be ineffective against competitors making minor modifications to the invention.

To obtain a U.S. patent, a patent application must be filed with the USPTO, where it will be examined by an examiner to ensure that the claimed invention is new, useful, and nonobvious. Examination typically involves careful negotiation between the applicant and the examiner. Due to the complex legal requirements of patent applications, most inventors obtain the services of a registered patent attorney.

Once the USPTO issues a patent, the patent owner may negotiate a license with competitors, or sue infringers for an injunction and/or monetary damages. Because claims are generally drafted to encompass something broader than a specific commercial product, patents can provide broad protection against competitors who might simply try to make minor changes in an effort to avoid the patent. Say you invented a chair on roller skates and applied for a patent based on this invention. If a competitor then marketed a chair on roller blades, they might still infringe your patent depending upon how broadly the claims are drafted.

Copyrights are a third form of IP that protect the expression of ideas (but not the ideas themselves) from being copied. A copyright exists the moment an author fixes an expression in a tangible medium. The moment an author writes words on paper, an artist paints a picture on canvas, a sculptor chisels into marble, or a software developer hits the save button, the author of the work automatically has copyright protection without doing anything further. The author can also choose to register the copyright with the U.S. Copyright Office. As with trademarks, copyright registration provides certain benefits, such as the right to statutory damages and attorneys fees if there is copyright infringement. Nuances of copyright law can be very complex, so authors generally seek advice from a competent attorney for advice regarding specific factual situations.

This article has only presented a very brief introduction to the various forms of intellectual property. For more information or for intellectual property assistance, please contact the authors.

Ross Dannenberg & Jordan Bodner, www.BannerWitcoff.com, are partners with the Washington, D.C. office of Banner & Witcoff, Ltd., an intellectual property law firm. The views expressed in this article are solely those of the authors, and should not be attributed to Banner & Witcoff, Ltd. or any of its clients. THIS ARTICLE IS NOT LEGAL ADVICE, NOR DOES IT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH ANYONE. Seek advice of counsel to discuss your own situation. Our contact info is below.

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Article: Copyright Preregistration as Protection for Video Games

Posted by Ross Dannenberg (Gamertag: Aviator) on Friday, May 12, 2006.

Marc Cooperman and Michael Krashin recently penned an article discussing preregistration of copyrights as an additional form of protection for video games. When video game software is pirated or leaked before the game's initial release, copyright preregistration provides an addition avenue of protection for video game developers. Their article discusses the basics of preregistration as well as some of the remedies preregistration provides.

Download the article here. (PDF)

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Article: Patenting of Video Games

Posted by Ross Dannenberg (Gamertag: Aviator) on Tuesday, May 31, 2005.


Gamasutra.com is presently running an article which Steve Chang and I wrote as their feature article:
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Today's feature, subtitled 'Top Mythconceptions on Patent Protection of Video Games' and from IP lawyers Ross Dannenberg and Steve Chang, addresses the sometimes controversial area of software patents from a lawyer's perspective:

"Our informal review of the records at the U.S. Patent and Trademark Office (PTO) revealed a relative dearth of patent applications for the video game industry, especially considering how technology-dependent the video game industry is, and given its size in terms of annual sales. Why is that? Patents, by their very nature, grant the right to exclude your competitors from stealing the fruits of your labor, and yet this powerful tool appears to be overlooked by the majority of the industry. In an effort to answer this question, we set out below to dispel what we see as the top myths surrounding patent protection of video games, and hope to encourage innovative game developers to take steps to protect their valuable innovations."
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Read the entire article on Gamasutra.com:

R. Dannenberg & S. Chang, It’s Just a Game, Right? Top Mythconceptions on Patent Protection of Video Games, Gamasutra.com, May 31, 2005

Alternate Link 1

Alternate Link 2

PDF Version

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