Welcome back to Legal Geek. This week, we take a look at a recent court decision which confirms how difficult it can be to patent some board and card game designs in the current patent climate in the U.S., and what the options are for creative game developers.
https://archive.org/details/LegalGeekEp75
Amanda and Ray Smith developed and tried to patent a new method of playing Blackjack, consisting of new rules mixed in with those well known for this gambling card game. The claims focused on implementing these game rules with physical playing cards were rejected by the U.S. Patent Office for not being eligible patentable subject matter according to rules clarified a couple years ago in the Supreme Court's Alice Corp. v. CLS Bank decision primarily focusing on software.
A few weeks ago, the Federal Circuit Court of Appeals upheld the decision of the Patent Office and its Appeal Board to reject these claims on playing a card game as patent-ineligible. What made this case interesting beyond the card game field was that this is the first time the appeals court confirmed that it will not pass judgment on the Patent Office's suggested subject matter eligibility guidelines published to help explain the standards to lawyers and to patent Examiners following the decision in Alice.
Although Examiners rely on this guidance heavily in applying a lot of rejections to patent claims in certain art units like the games art unit, this guidance is not actual rules promulgated by the Patent Office and thus the court does not consider them binding enough to provide any judgment thereof. For now, the Alice decision and the guidance on what is an unpatentable Abstract Idea will stand, leaving a lot of software patents and method patents in rough shape for gaining any traction towards allowance as an issued U.S. Patent.
Turning this back towards our favorite field of card and board games, does this signal the end of patents for game rules? Not necessarily.
The Federal Circuit explicitly acknowledged that some inventions in games could still meet the requirement of being something substantially more than just an Abstract Idea under the test set forth in the Alice decision. An example provided for card games would be those for conducting a game with a newly developed original deck of cards. That's not much comfort for those wanting to innovate with 52-card standard decks of cards, but it does offer some hope for a way out of patent eligibility rejections.
Another good sign is that the Smiths also had claims for performing the same game rules using a video game system, like a software app, and those were deemed allowable and patent eligible by the Patent Office. As many board and card games move to parallel release as apps and physical products, this means patent protection is still likely available for part of these ideas. Plus design patents can be used to cover very broad aspects of graphical user interfaces which may be used with video games, so there's a lot of protection still out there for game designers.
However, the Smith decision this year simply confirms that some tabletop game designs will simply fall victim to the rules becoming harsher across the board against method claims and software type claims in U.S. Patents.
The Bottom Line is, it's always been tough to patent game rules, and that is not changing anytime soon.
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Temporary Closer: Thanks for listening. If you enjoy this segment and will be coming to Origins Game Fair in Columbus Ohio in June, please message me on Twitter @BuckeyeFitzy and we can meet up. I'm also giving two seminars about game design and the law, feel free to check them out.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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