Protection Racket

Alex Tutty joined Sheridans Solicitors at the start of this year, and principally advices developers, publishers and distributors in the videogame business on the exploitation and development of software, games and media products.

Prompted by recent discussion and the ever-present issues of protecting original ideas, intellectual property and products, Tutty has written this article for GamesIndustry.biz on the realities of protecting software and games with trademark, copyright and patents.

Success breeds imitation and this is especially the case on the internet. For every person developing a new and interesting website or game there are countless others ready to pounce on whatever looks like the next successful thing and create their own version (whether of good or poor quality). The quote attributed to Mark Pincus, CEO of Zynga, in which Pincus stated "I don't fucking want innovation. You're not smarter than the competitor. Just copy what they do and do it until you get their numbers" succinctly sums up one of the approaches adopted by some companies.

The speed at which copies of a successful product appear depends to an extent on the barriers to entry, whether that be by way of a technological barrier or installed user base. If the barrier to entry is low the market becomes inundated with similar products before the market settles down and the less successful ones drop away. However if before competitors can emerge a huge market share has been built up it can be incredibly hard for potential competitors to claw back or establish a foothold in the market as the sheer dominance of the central player creates an effective barrier to entry, at least in the short term.

This is especially the case with games. One game will catch the popular imagination and gain a huge user base (be it Mafia Wars, Farmville, Guitar Hero or Call of Duty). Others will notice this popularity and try to create alternatives with subtle and not so subtle variations in order to try and gain users, either new ones or those disaffected with the original. The obvious question which arises as a result of this is that if a developer does create a new and original concept for a game how can they legally protect their position it in order to make money from it, stop poor imitations or just simply stop people ripping it off? The flip-side to this is what level of copying or imitating is acceptable and can be expected before it steps over the legal line and leaves the competitor open to a successful claim?

In order to illustrate this and provide a working example it is helpful to go back in time and pretend that I have had an idea for a revolutionary new game played on Facebook that involves users having a virtual farm which they tend and grow crops on. Users can then trade their farm's produce with other users. My game is called Farm Ranger and in order to monetise it I have envisaged small payments being made to buy upgrades, nothing big so it hardly seems like you are spending money, just some different seeds or some livestock.

As the developer I am interested in protecting my idea so that I can exploit it successfully. There are a number of potential legal solutions to assist me, each has some benefit but also may be inadequate for my needs.

Patent the software

A patent gives the holder a monopoly right to the use of the invention for a specific period. Obviously this is incredibly useful if you can get it, but the tests for patentability are stringent and moreover in the UK computer software per se is excluded unless it has an inventive 'technical effect' on hardware (in which case it is the hardware and the technical effect on it that is patentable). This necessarily begs the question of "What is a technical effect?" A technical effect can otherwise be described as the process which the computer operates to achieve the effect, such as an industrial process. This is not of much help for most games where there is no obvious inventive technical effect (other than in Farm Ranger's case of causing players to wile away hours tending virtual crops). The more inventive and different the technology the more likelihood there will be a technical effect on hardware and that a patent can be obtained. For example, aspects of the Microsoft's Kinect project have been patented in the US and certain games being developed for the platform are subject to patent applications. The US patent system is different to the UK one in that it allows patents for computer programs but it does give a good illustration of the sort of things that can be patented.

It is unlikely that in the UK that Farm Ranger would be considered to have a technical effect on hardware so a patent is unlikely to be able to help protect my game.