Myth: You cannot patent wargames

The following piece was written for PAXsims by Dr. Jeremy Sepinsky, Lead Wargame Designer at CNA. The views expressed are those of the author and do not represent the official policy or position of any agency, organization, employer or company.

For other coverage of this issue, see the analysis posted by (lawyer and gamer) Matthew Yuen on the Yuen Law blog. 

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Contrary to what seems like the prevailing opinion, games (to include board games and computer games) can be patented in the US. There are some very specific requirements to meet – the game (more specifically, the game idea) must be both novel and non-obvious (less legalese here) – but they are patentable. A quick google search confirms that there are plenty of companies willing to take your money to try to patent your game idea.

So why the prevailing opinion? The myth of game patents largely stems from copyright law. Recent cases, particularly Bilski v. Kappos (the Texas Bang! Case; but see also Alice v. CLS BI), seem to argue against legal protections for the underlying mechanics of a game. This had led some to wonder whether patents on games like Monopoly and Magic: The Gathering, which were awarded before Alice v. CLS BI, would be granted today. But it seems that a recently awarded patent might demonstrate otherwise.

Regular PAXSIMS readers might remember a post that started a flurry of comments about this issue.  Buried near the bottom of the post was the notice of a patent for an Unconventional Warfare Wargame that unabashedly copies the classic (notably unpatented) boardgame Catan. An article in TechLink specifically mentions that the creators (Jeremy Arias and Chad Klay, U.S. Army officers attending the Naval Postgraduate School in Monterey, California) are patenting the game so that they can license it to other game manufacturers as an educational game. I expect most of us that saw the application expected that the patent would never be granted. Most of us were wrong[1].

It is not clear how this game passed the “novel and non-obvious” requirements for a patent, but its awarding sets a precedent that is concerning. I reached out to the Catan legal team who informed me that they are “weighing [their] legal options” and that the negative precedent this would set for game innovation, design, and development “is something that cannot be taken lightly.” For gamers and wargamers in both the public and private sector, this has the potential to drive up costs of production and create barrier to entry for the board game world – which is experiencing a substantial boom thanks to crowdfunding sites bringing the games straight to consumers and which looks to continue to grow in the future.

But many of these new games are not patented. Why? Because patents are expensive. Cost estimates for things legal services aren’t always obvious, but this site suggests it could cost from $5,000 to $15,000 to patent an idea. The cost to patent a board game? I don’t know. But my the bigger fear is the opportunity it opens for patent trolls to enter the marketplace, driving up the potential legal costs for any new game coming to the market. Companies, like NewEgg, have been fighting patent trolls, and continue to do so, but it is an expensive legal battle. And for the boardgame industry, the expected reward, typically the profits plus optional penalties, probably isn’t worth the cost. Additionally, just because a patent is granted, doesn’t mean the situation ends there. Patents can be challenged, even invalidated, after they are granted. But, in reality, there are a lot more lucrative targets out there, and threatening to patent trolls any boardgame simply seems pale by comparison.

Let me be clear: I am not trying to suggest that the Unconventional Warfare Wargame team is out to be a patent troll. Instead, I wanted to spend some time understanding the potential implications of a large-scale application of this process to the game industry. Does this patent set a precedent that can open the door for malign actors to enter the marketplace?

From a small sampling of data points that I’ve taken with industry professionals: they aren’t worried. In their opinions, the cost to patent a game idea, as well as the cost of litigating an infringement, is likely to far outweigh any expected value to the settlement. Patents are easily granted, but expensive to enforce. No one seems to expect that this one patent will change the tides, but it is at least a curiosity. Where we go from here is anyone’s guess. I only hope that the gaming community writ large will band together against any patent trolls that threaten the future of our hobby and profession.

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[1] Sadly, I can’t link you directly to the status of the project. However, if you sign up for a uspto.gov account, search for patent application number “16274096” and navigate to “Transaction History”, you’ll notice that it says “Issue Notification Mailed”, which means that the patent was, in fact, granted.

Jeremy Sepinsky