Patents in video game Following my previous post about copyrights, I now seek information about patents in video game. According to the World Intellectual Property Organization : A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application. As stated by the same source, several condition must be met to obtain one, including : The invention must show an element of novelty; The invention must involve an “inventive step” or “non-obvious”, which means that it could not be obviously deduced by a person having ordinary skill in the relevant technical field; The invention must be capable of industrial application, meaning that it must be capable of being used for an industrial or business purpose beyond a mere theoretical phenomenon, or be useful. Its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, aesthetic creations, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, methods for medical treatment (as opposed to medical products) or computer programs are generally not patentable. I believe the three first conditions are rather obvious, while the last seems to be much more complicated. What is the difference between something patentable and something that is not ? How difficult would it be then for a video game corporation to patent an idea, as suggested in my previous post ? I would be very interested in any information regarding this subject, as I don't really understand how this has not already became a war in the video game industry.
Yes you can patent video games in the U.S. The quote from international law is not fully applicable to the U.S. In the U.S. there is no requirement for industrial applicability or being a technical solution to a technical problem The USPTO has several classes aspects of video games might fall into one is CLASS 463, AMUSEMENT DEVICES: GAMES 1 INCLUDING MEANS FOR PROCESSING ELECTRONIC DATA (e.g., computer/video game, etc.): 2 . In a game including a simulated projectile (e.g., bullet, missile, ball, puck, etc.): 5 .. Simulated projector with diverse interactive target: The patentablity of games in the US has become more difficult after the SCOTUS Alice decision. There is a very detailed answer on Ask Patents. This is a good article on the patenting board games. However it was before Alice.
Copyright is the reason Microsoft owns the copyright to the Minecraft code. That gives them exclusive rights to make copies and derivative works. A mod is a derivative work. Further, copyright is near universal because of the Berne Convention, the countries in blue all respect each other’s copyright: So, you can only make a derivative work if you are Microsoft, have Microsoft’s permission, or fall into one of the copyright exemptions which aren't relevant here. The EULA is the permission Microsoft gives and they set the terms on what you can and can’t do. If you make a mod without following the terms of the EULA then that is a copyright violation and gives Microsoft the ability to sue you and prevent you from distributions the mod. Copyright in an infringing derivative varies by jurisdiction but in the USA, there is no copyright in the work - so, yes, Microsoft do not own it (but they can prevent its distribution) but neither do you. Copyright laws allow Microsoft to not only prevent you from distributing the infringing mod, they can prevent anyone from distributing it - that’s how the get people like Patreon to shut down accounts.
Trade secrets must be kept secret. There are plenty of intellectual properties that can't be kept secret. The most obvious ones would be a writer, musician or composer - the whole reason for their work is to publish it and make it available to as many people as possible. How could that possibly be a trade secret? Similar with trademarks. The whole point of a trademark is to be widely visible. And there are patents. Here the situation is different. Before patent law, inventors kept their inventions indeed secret. Then people realised that this secrecy is in the way of progress. So patent law was created, which gives an inventor rights beyond those of a trade secret, at the cost of having to publish their invention. Even if you invent today, you have the choice of keeping your invention secret and relying on trade secret law, or patenting it and relying on patent law. Again, some inventions are clearly visible. When the bycicle was invented, it was clearly visible to everyone and couldn't be kept secret.
At least in theory an end user could be sued for infringing on a patent, especially a method claim. Given the cost of a patent lawsuit, this strikes me as extremely unlikely to happen though, unless the user in question were an extremely large company, or something on that order. Theoretically, the only difference between open-source software and proprietary software would be that availability of the source code makes it easier to prove use of a patent in open-source software. Releasing the software as open-source doesn't confer any immunity from patent law or anything like that though. Realistically, however, the chances of being sued for infringement if you're basically giving away the software in question are fairly remote. It rarely makes sense for a patent holder to spend millions of dollars on a lawsuit where they stand no chance of even recovering their cost (but no, that certainly should not be taken as legal advice that you're free to infringe on patents, or anything similar--in fact, none of this should be taken as legal advice at all). If you can actually prove that a technique was published or publicly known and used (e.g., in a product that was offered for sale) well before the patent was applied for, the patent is probably invalid (and if proven so in court, the case would normally be dismissed with prejudice, which basically means the patent holder wouldn't be able to sue anybody else for infringement of that patent). I'd note, however, that in my experience this is much less common than most people imagine--many look at (for example) the title of a patent, and assume it lacks originality because it refers to some well-known technique, and ignore the claims where it details the precise differences between the previously known technique and what the patent really covers. Just for example, the EFF used to have a web page talking about a (now long-since expired) patent on how to draw a cursor on screen. In an apparent attempt at scaring the unwary, they showed code they claimed infringed in the patent--despite the fact that the patent's "background of the invention" specifically cited the technique they showed as being previously known, and not covered by the patent.
The film you want to base your game on is probably covered by copyright and likely trademarks. For purposes of the question I'll assume it's not in the public domain (if the film was made before 1926 for example). If you used the film to create your game, it would be a derivative work. Derivative works require the consent of the copyright owner. Distributing it without their permission would leave you open to lawsuits for copyright infringement, unjust enrichment, and possibly others. Fair use/fair dealing likely doesn't apply here. This isn't criticism, parody, or a transformative use. You may be able to get away with this by flying under the radar if you don't distribute it for profit or on any large scale. Some studios are more litigious than others and some accept that leaving fan works alone is better than the bad publicity that comes with shutting them down. However, this is entirely reliant on the goodwill of the studio. The legal way to do this is to get in touch with the copyright holder and ask permission. This may be in return for something else- usually money, royalties, and/or some creative control over your work. This may not be feasible though as a large company may simply ignore such requests from random people. Note that a lack of a response in this case is not permission.
Does a situation like this constitute breach of contract and/or a violation of advertising laws? No. There is not enough information that would lead to a finding of either. It is unclear how customers would be allegedly affected (if at all) by the release of a product at a different store, let alone where the goods or services at issue are digital and require no physical presence at a venue or premise. Except for very specific factual circumstances, a change of sales venue would hardly be cognizable as deceptive or unfair practice. Also, prior to purchasing or reserving a game, there is no contract between the public and the developer/supplier. Potential customers typically are not entitled to a specific performance by the developer. Even if [Phoenix Point] supporters' decision were provably based on the prospect of release at Steam, your description nowhere reflects that there was a mutually conscious exchange (or promise of an exchange) of considerations involving the parties' support of a game and the counterparty's release of the game at a specific venue. Absent that meeting of the minds, either party's reliance or expectation on the other is irrelevant. Generally speaking, the sole cruciality of either party's motives does not create legal obligations.
I've answered this in the context of US patent law, but similar principles apply elsewhere in the world. As stated in 35 USC 271, "whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent". Thus, a patent provides the patent owner with the right to exclude others from performing these actions, and the right to sue anyone who does perform these actions (both to stop them from infringing the patent, and to collect monetary damages for their infringement). Creating an infringing product and then licensing it under the GPL (or any other scheme) does not change the fact that it infringes a patent. 35 USC 271 also states that "Whoever actively induces infringement of a patent shall be liable as an infringer". This means that, even if the creator of the infringing product does not perform any infringing acts in the US, the act of offering it for free use could be construed as induced infringement of the patent, and they could still be sued for that infringement.
You can't patent an algorithm, but I'll assume you are talking about the case where you have patented a machine or process that uses an algorithm, but that adds significantly more, and that the software being distributed implements much of this process. Courts might find an implied licence or promissory estoppel when distributing software under an open source licence that doesn't explicitly exclude patent licencing as part of its terms. It would be prudent to state your patent rights and explicitly exclude a patent licence if you intend to enforce your patent rights. As an example, this software implicates a patent , so they allow "permission to use, copy, modify, and distribute this software and its documentation for educational, research, and non-commercial" purposes. Users that want to use the software commercially need to contact the authors who also happen to be the patent owners, and I assume would negotiate a patent licence at that point.