Riot Games, creator of League of Legends, recently secured the patent for their spectator mode. The initial response was less than positive. Between King attempting to block the Banner Saga over trademark concerns and ongoing concerns over patent trolls, the development community was understandably wary of anyone trying to establish an intellectual property monopoly. Riot responded with a public statement making it clear that it has no interest in using its patent offensively but is primarily interested in defending itself from patent trolls. Being a well-respected company, Riot’s statement has been generally accepted as the end of the matter.
Video game companies holding patents is not a new phenomenon. Entire websites have been dedicated to tracking the patents of the industry. Electronic arts, Activision, Zynga, and others all have extensive patent portfolios. As a general rule, these companies don’t use their patents to create lawsuits. They likely use them as defense against patent trolls and to increase the value of their companies; even useless patents increase a company’s valuation.
The initial reaction to Riot’s patent belies a misunderstanding of patents and how they are susposed to function. A patent is a set of rights granted to an inventor so the inventor can protect her invention. These rights last about 20 years. They form a monopoly by allowing the inventor to keep others from making, using, importing, offering for sale, or selling the invention; but, they don’t guarantee the inventor can do so. The USPTO will issue patents on inventions that are illegal. The invention is patented but cannot be made. Similarly, if I invented a new disk drive for the Xbox, I would have to license the rights to build the Xbox before I could manufacture my Xbox with new disk drive.
An invention must meet four criteria to receive a patent. The invention must be useful in some way; the patent office assumes an invention is useful unless there’s evidence to the contrary. The invention must be novel, meaning no one else has thought of it. Relatedly, it must be non-obvious, meaning no one else who was skilled in the art could have easily thought of it. For example, if someone who makes video game system hardware could have easily thought of my new disk drive design, it’s probably unpatentable. Lastly, the subject matter of the invention must be patentable.
Most video game patents are either machines or processes. In the video game industry, machine patents refer to the hardware of gaming, from systems to controllers. Most systems are composed of several patents, each covering a different component. The mechanics of a game, including spectator modes, are covered by process patents. Most of the patents owned by software companies are process patents.
Another type of patent is a design patent. A design patent covers the way something looks or the ornamental features. If I made a game system in the shape of a spiked sphere, I could patent the shape so that no other game company could make a spherical system with spikes. Design patents can only apply to real things. Activision Blizzard was recently challenged by P.S. Products over a set of stun gun brass knuckles. P.S. Products had a design patent on a stun gun in the shape of brass knuckles. Activision included stun gun brass knuckles, called galvaknuckles, in Call of Duty, Black Ops II as a virtual in game item. The court dismissed the patent infringement case because no one who purchased the game would think they were purchasing stun gun knuckles – and because a virtual item cannot infringe a design patent on a real item.
Having a patent doesn’t make a company a troll. Most video game companies have at least one patent, with most having many more. Using a patent to stifle the creativity of the industry, hinder competition, or make a quick payday are hallmarks of being a troll. Differentiating between patent trolls and patent holders begins with a clear understanding of patents and their limitations, particularly within the variety of spaces in the video game industry.