Legal Geek No. 83: No Man's Sky and the Superformula Patents

Welcome back to Legal Geek. This week, we review the new hot game No Man's Sky and the potential patent infringement controversy facing developer Hello Games.

https://archive.org/details/LegalGeekEp83

After three years of development following an initial announcement in 2013, No Man's Sky finally hit store shelves in early August for players eager to play a unique and new space exploration experience. The novelty in No Man's Sky is that the universe that can be explored is procedurally generated by a system of rules and parameters that can allow over 18 quintillion different types of planets to be accessed. As such, this game approaches the infinite diversity in infinite combinations of the real galaxy more so than any other space exploration game before it.

The game has had mixed user and critic reviews, but there's no doubt it is a commercial success. However, one thing that almost delayed the game further may still be a huge concern for Hello Games, and that is a potential patent infringement lawsuit from a patent owner named Genicap Beheer from the Netherlands.

Genicap recently had a patent issued in April 2016, U.S. Patent No. 9,317,627, on a method and apparatus for creating timeless display of widely variable naturalistic scenery on an amusement device. This is the third in a series of patents dating to 2009, but this patent boils down to using a mathematical formula called the Superformula to make varying patterns and shapes which create simulated plants, landscapes, and the like over different times on an amusement device.

That sounds a lot like the procedural generation of planets and landscapes done in No Man's Sky, and indeed, there have been rumors and claims that Hello Games also used the same Superformula as is recited in Genicap's patent to make No Man's Sky. That would appear to be literal patent infringement.

But there's a catch. This is the type of software abstract idea patent that has been under incredible scrutiny at the Patent Office and courts over the past five years.

Under U.S. patent law, abstract ideas like mathematical formulas cannot be patented without the recitation of something more than just a generic computer implementing the formula. It appears that Genicap successfully argued that this "something more" was the limits of performing this process on an amusement device and separating these images over time to display widely varying natural scenery. That may be enough to avoid invalidation of the patent because it could be argued that this does not lock up the Superformula from use in all fields.

But it's no guarantee, as reasonable minds will differ on whether this is enough to meet the rules for adding enough substance to be able to claim an invention based heavily in an abstract idea like a math formula. That means Hello Games could be at risk of paying significant damages and fighting expensive patent litigation if Genicap wants to press the issue.

The Bottom Line is, there's no telling if Hello Games will actually be successfully sued for patent infringement, thanks to uncertainty in this part of patent law. On the bright side, No Man's Sky did finally get to gamers, so at least this patent issue has not stopped consumers from enjoying this innovative space exploration game.

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