Tom Jolly's patent

Read his explanation on BGG. I think he and Aldo from wingnut are entirely justified in their position regarding the patent. I also think it is actually a wise thing to do.

My impression is that they are taking a legal precaution to protect themselves from the big sharks, not from the 'little guys' like us (speaking entirely for myself here).

-Darke

I don't want to dispute your own personal experience of this, but there is good evidence that patents restrict the envelope pushing rather than encouraging it. A classic early example is the steam engine - it took until the patent expired for anyone to be able to develop it in new and different ways because the original owner protected it so strongly.

I don't doubt that there are times when patents are warranted - your example is a good one, and more power to your guy for developing such an ace idea (I feel the same way about Dyson and his innovations.)
But games are not the sort of thing that patents were ever designed to protect - games probably belong in the same field as books and paintings etc, where it should be copyright that defends the "whole" work, rather than a patent protecting some small aspects of it.

So wait a second; Tom Jolly and Tom Wham are the same person?

Anyway, I see Jolly's point of wanting to protect himself and I think that's reasonable but I agree with yogurt that overall, patenting of game mechanics would be a negative trend.

In my opinion, it's part of what keeps us litigious. I personally think that there's a threshold on what counts as sufficient mental effort to justify protection. A product that tooks years of research and development to create? Sure. A game mechanic that took 30 seconds to come up with? No way. The whole premise of "I was the first one to come up with the idea to let players draw cards from the discard pile, now everyone who uses that in a game has to pay me" is just absurd. I don't think you're entitled for intellectual protection for an idea that many other people could have come up with, and as past precedent has taught us, it's very common for similar game mechanics are certainly easy to emerge from independent sources.

That seems to be yogurt's point, that patenting of game mechanics flies in the face of how game design works, and in the end, it will hurt the hobby. Consider that one of the greatest games ever made, Puerto Rico, could not exist if mechanics were all patented, since it borrows from many other games.

Well, in this case, it actually appears to be Hasbro that Jolly is seeking to protect himself against.

In my opinion, Hasbro puts out very weak products, and relies on the brand name of their mostly mediocre games, or on licenses with TV or movie tie-ins, rather than demonstrating much interest in developing innovative and interesting games. This hurts us as designers because the games that we like to design are not as commercially viable. However, Hasbro cannot be held solely responsible for this, since the public are clearly buying Hasbro's lousy games in sufficient quantities to validate this approach.

But Hasbro is very clearly all about making money, and game quality is way on the back burner. That fits into this discussion as well. The idea of patenting mechanics appears to put us all in competition for each other in a way that is not going to be healthy or productive. Imagine if game companies need to start hiring lawyers to be able to sue one another when a vaguely similar mechanic to one that they've patented comes out. Those of us who love games care about more than money: we seek to design and play interesting game systems. If the business aspects of gaming begin to supercede the "artistic" aspects, it hurt us in the end.

I don't think this is a reasonable restriction on who's allowed to have an opinion in this. Very few people are in the position you describe, yet many people could potentially be in the situation where patented game mechanics could affect us. As designers, anyone who seeks to publish would have to be aware of what mechanics are already patented, and be sure not to use those mechanics. And as game players, the borrowing of mechanics that has produced so many of the excellent games that we enjoy could end as a practice, diminishing the overall quality of the games. Everyone has a stake in this.

For myself, here's what I'd be afraid of: I spend a few years designing a game with a couple of original mechanics. Then, when I take it to a publisher, he says to me "well, this mechanic here is sort of similar to [patented mechanic X], and we'd need to give them a royalty if we published your game, which we can't afford. So, change the mechanic or we can't publish the game." And that's what I wouldn't want: to have to make "artistic" decisions based on external business considerations.

In the end, I don't think it will amount to that big a deal; I don't suspect that the practice of patenting mechanics will catch on. But I do agree that it would be bad if it did.

-Jeff

This is, if you'll pardon the pun, patently untrue. Unlike copyrights, patents expire within a couple of decades.

And people tend to license patented materials for a reasonable rate to make money.

Business aspects of games are part of life. It takes a lot of money and a lot of time to put out games. For the few people who actually make a living in the industry, some intellectual property protection for a novel idea is warranted, as it is their livelihood.

Happens all the time. You have a game that you think is perfect, but market research shows that with a tweak or some dumbing down it will sell 100 times the number of copies. Lots of people will dumb it down and sell 100 times the number of copies.

Lots of companies have patents on mechanics. Mostly there are huge financial barriers to entry for anyone not making a lot of dough.

I wholeheartedly agree!!!

In my opinion, chief, you shouldn't agree. Copyrights do a fair job of protecting books.

For games, however, you can only copyright the verbatim text of your game. If it's simple enough, as with some contest rules, even your verbatim expression may be unprotected.

Copyrights do not protect your methods or procedures, so in practice, games have VERY limited useful protection under copyright law. You can protect your graphic design and trade dress. But your mechanics? Not with a copyright.

So, patents are required to fill in the gap. It has been a long-standing part of U.S. law that copyrights do not extend to methods or procedures, but only to their verbatim expression, and the verbatim expression has NO copyrightability insofar as it is indistinguishable from the simplest method of describing the procedure itself (the Doctrine of Merger).

If Copyrighting a game actually was particularly useful at limiting "knock off" games, then it would be worse on design than it would be patents, because people could have an ever-growing, really long-term lock on a game design for next to no money.

Patents, in contrast, are expensive. They must be defended. They are relatively rare. And they are of relatively shorter duration than copyrights. They are also scrutinized (although arguably the US Patent Office has let a lot of crap through the system in recent years). Copyrights aren't until they go to court.

A lot of people patent their games, but many fewer try to patent a single associated method. In most cases where they try to patent a single associated method, there are work-arounds. They aren't always as clever, but thus the reason why someone would pay to patent and pay to maintain the patent around a particularly clever invention.

Good point, Veritas, on why patents are a better tool than copyrights. I suppose my point was that I'd rather see interlocking sets of game mechanics protected, rather than individual mechanisms. The actual legal method of protection is less important to me than what's being protected.

Yogurt

Most people do. If you come up with a mechanic that you plan on making the "star attraction" of several of your games, though, then it may make more sense to patent a specific mechanic.

I'd have to see Tom's mechanic to see if it is sufficiently novel to be patentable. From a brief description it sounds very similar to things I've seen in Falling and other games.

What I think is bad is NOT patents, but the fact that the US Patent Office is granting patents that they have NO BUSINESS granting.

I do public policy work, and one thing that happens for regulations is that there are public hearings on them. I wish that the patent office had a similar process that allowed more people to get a chance to chime in for and against a patent application before they get granted. It would be a lot cheaper to speak out against a patent before it gets granted than to have to go to court later to knock down a faulty patent.

I don't see why games are any less deserving of patents than any other field of endeavor. I do think that some patents are too easily granted. I also think people like WotC make wildly overbroad claims about patents which may not even be valid patent filings to begin with. I think that's a problem.

It is not ONLY games that work this way. Write down a recipe. All the parts that talk about the way you think it tastes are copyrighted. All the parts that talk about how to make it are copyrighted only if they are written down in a particularly clever fashion. Tweak the wording slightly, and write the same darn recipe in my book, and I can do it without violating your copyright. Why? A recipe is a process. Processes and the simplest form of their verbatim expression are NOT copyrightable.

Write a paragraph on wiring a circuit. Reduce it to just the nuts and bolts. Pure process. If there's no simpler way to state those things, and if the order is a matter of process rather than creative choice, then those words are not copyrightable.

Copyright protects no process directives except when they are creatively stated, and then a slight rewording strips the process directive of all copyrightable content.

Copyrights provide almost no useful protection under U.S. law to most types of board and card games, except to protecting layout, displayed elements, etc. People can just rip off your game immediately, almost wholesale.

RPGs are slightly different. They have a lot of gray area as to what is creative content and what is rules, and they are so heavily text driven that you can make a compatible game, but it's best to work from scratch in a different genre.

At some level, even what has been described of Jolly's mechanics is not a single mechanism. It's a complex process involving a number of checks and rules on who can give what to whom. It's a process. It's patentable. It's not copyrightable.

And honestly, it's likely such a flavorful process that if you didn't patent it, and just patented your game as a whole, but none of its sub-systems, then somebody else could make a game that "feels" almost identical to yours with slight revisions of your mechanics.

Where do I begin?
By taking a deep breath, please. No need for outrage or exasperation, logical discussion will suffice nicely, thank you.

Same people who are now, the USPTO and, following the inevitable lawsuit, a judge. Nothing new there. (Mind you, I'm not a supporter of the "only if it was hard" school -- just noting that the "almighty Judge" already exists in this arena.)

Will everyone please stop it with this "chief" nonsense? It's intended to be deragotory, pure and simple, and is unacceptable (and yes, that begoms with Lee).

No, that's intentional condescension, not "just legitimately confused." Please cease.

Logical discussion, please. This is a personal attack and is unacceptable.

This is a great discussion, minus the hostility. Let's keep it that way, ok, y'all?

-- Matthew

Tony

First, if by patent people you mean the people here on the thread who think patent protection is not an unreasonable thing to have, then I take issue with your statement. I support them, because without them the law provides for no protection for pure mechanics, and I think there should be. Since the beginnings of our legal system pure process was destined for patents and creative text was protected by copyright. I see no reason to change this.

My rationale has NOTHING to do about having $$$ to afford a patent, and I've complained, in this thread by the way, that patents have a prohibitive cost to get.

Regardless, if you think having free patents will do you any good, more power to you. Ask for them. If you get them, they won't help you by themselves. They have to be actively defended, and if you don't have the cash to afford to file one, you undoubtedly don't have the cash for the prolonged legal battle to defend one. That's a nasty side-effect of our adversarial system of jurisprudence.

I personally would like to see patents cheaper as well, but I'm not under any illusion that it will make them any easier to defend.

You want _REAL_ protection. Customer loyalty. People who buy your product because of the name on it. People who by Gucci for $10,000 instead of paying $750 for an identical off-brand knock-off dress. That's REAL protection for your wallet. It's hard to come by.

Short of that you need to litigate to gain any real protection in this country. Filing for a registration on a copyright or trademark or patent just gives you a little more weight to your stick when you shake it. It doesn't bring down hellfire and damnation on offenders -- you need some good lawyers and a bankroll for that.