Video gaming and IP: how to play the game

Stephan HANNE International Cooperation and Legal Affairs Department, EUIPO 25th February 2020 Overview of non-technical IP and other rights

Database rights Don‘t clone, Computer bro programs Trade Secrets Data protection Image Copyright rights

Gambling law Unfair Trade competition Designs marks 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 a form of expression of a computer program within the meaning of Article 1(2) [EU computer program directive] and cannot be protected by copyright as a computer program under that directive. Nevertheless, such an interface can be protected by copyright as a work by [the EU information society directive] if that interface 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 Overlap of non-technical IP rights – The multiplayer game • Trade marks and copyrights Overlap of non-technical IP rights – The multiplayer game • 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) Don‘t clone, bro Idea and Expression The gameplay Idea and Expression – The gameplay Art. 9(2) TRIPS: “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” Art. 1(2) EU computer program directive: “Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.” Idea and Expression – The gameplay T-68/11, 6.6.2013 – Watch dials Idea and Expression – The gameplay

(Source: https://news.artnet.com/art- world/maurizio-cattelan-banana-explained- 1732773) Expressionless idea → Idealess expression Idea and Expression – The gameplay

• Merger doctrine: Scenes that must be done. • Public domain: „And if they have not died yet, they are still alive.“

• Derivative works Idea and Expression – The gameplay „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 you Maëlle, Adriana & Sylvie !!!

Videogaming and IP: How To Play The Game A ‘Patent Perspective’

Peter Verhoef 2020 European Patent Office 24 European Patent Convention (EPC)

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"

European Patent Office 25 Interpretation of the "rules for playing games"

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)

European Patent Office 26 Schemes, rules and methods for playing games Traditional games

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.

European Patent Office 27 Schemes, rules and methods for playing games Contemporary games

European Patent Office 28 Schemes, rules and methods for playing games 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)

European Patent Office 29 Exclusion from patentability - Game Rules

Any technical means convey technical character to a game

Excluded Not excluded

Method: Method: ▪ draw two numbers randomly ▪ draw two numbers randomly using a ▪ if numbers match, the game is won (cubic) dice or a computer ▪ if numbers match, the game is won

Method: Method: ▪ player taps along the game music ▪ player taps on a touch screen, along ▪ if rhythms match, move to next level the game music output by speaker ▪ if rhythms match, move to next level

European Patent Office 30 Inventive Step - Game Rules

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

European Patent Office 31 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

European Patent Office 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?

European Patent Office 33 Electronic multi-play poker with face-up hand in bottom row (T0336/07)

DECK 2

DECK 1

European Patent Office 34 Electronic multi-play poker with face-up hand in bottom row (T0336/07)

DECK 2

DECK 1

European Patent Office 35 Electronic multi-play poker with face-up hand in bottom row (T0336/07)

"the underlying notion of sharing held cards Two cards are between hands, inherently minimizes the number Duplication shared in two of player selections ... time is thus reduced ... hands more hands to be played per time unit."

Agreed convention Not a game rule! on how to initiate a "... though undoubtedly technical in the present The poker rules stay new hand → thus a context, [these effects] are inherent in sharing the same! gaming rule as a game rule."

Reduces the number Technical effects "... these effects must be disregarded in the of player inputs of efficiency from evaluation of inventive step, as it is attributable More games per unit the rule or from to the modified game rule, and not to its time implementation? technical execution by duplication."

European Patent Office 36 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

European Patent Office 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

European Patent Office 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

European Patent Office 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"

European Patent Office 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

European Patent Office 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

European Patent Office 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.

European Patent Office 43 Presentation of Information / User Interface

▪ 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

European Patent Office 44 Presentation of Information / User Interface

▪ 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.

European Patent Office 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 player with football guide G3 is displayed on the end of the display area so as to properly indicate guide mark the direction in which the ball is to be passed by the player character P1.

European Patent Office Simplified claim 1

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 .... 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

European Patent Office Feature a

▪ Guide mark ring-shaped aesthetic impression → non-technical ▪ Guide mark near foot Prior art player Konami player 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

European Patent Office Features b and c

▪ 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 guide mark → 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

European Patent Office Feature c

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.

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).

not derivable from the prior art available

European Patent Office Overview Jurisprudence T1458/07 T0667/10 T1937/07 T0919/10 (1995 – 2019) T0468/05 T1543/06 T0752/09 T1837/10 T1482/05 T1704/06 T0905/09 T2449/10 T1251/10 T0072/06 T0257/07 T1547/09 T0188/11 T1939/10 T0495/06 T0335/07 T1782/09 T0594/11 T0630/11 T0576/06 T0336/07 T1883/09 T1009/11 T1385/12 T1023/06 T0473/07 T1894/09 T1039/12 T2184/12 T1510/15 T1092/06 T0859/07 T2127/09 T1331/12 T2321/12 T1386/15 T1134/06 T1793/07 T0042/10 T0414/12 T1884/13 T0904/16 T0875/93 T0951/02 T1274/06 T0600/10 T1266/17 T0448/16

1995 2000 2005 2010 2015 2019

T0570/91 T0535/96 T1024/00 T1242/05 T1073/07 T0683/11 T1469/15 T0479/94 T0045/97 T0928/03 T1093/06 T1112/08 T1375/11 T0333/95 T0060/98 T0330/04 T1102/06 T1553/09 T1386/12 T0109/98 T0153/05 T1644/06 T1225/10 T2172/13 T0061/00 T0717/05 T0012/08 T1769/10

European Patent Office 51