Perhaps the Big Bucks of the Game Industry can Force a Change?

The software industry on it's own hasn't been able to push for any renovations to the U.S.'s achingly outdated patent system. Perhaps the game industry can. Certainly the patent office has been a fixture in the game industry for a while now, but as time goes on, you'll see more of this kind of stuff.

The pressure point I suspect will be on sample implementations. Companies who take out patents must actually implement the concept, it can't be purely theoretical. There must be an application. For an example check out Nintendo's patents on certain concepts, always shortly followed up by design patents.

GameDaily BIZ: Beware the Patent Troll

Here is a glimpse of some patents of which you may want to take note.

• U.S. Pat. 6,200,138: "Game display method, moving direction, indicating method, game apparatus and drive simulating apparatus," assigned to Sega (a game display method displays a driving game which permits characters to be present in a city and can prevent cruel images of collisions with characters).
• U.S. Patent No. 6,695,694: "Game machine, game device, control method, information storage medium, game distribution device and game distribution method," assigned to Konami Co. (a control method for controlling a game machine allowing a player to enjoy stepping while listening to game music, comprises the steps of detecting whether or not the player puts their foot or feet on each of a plurality of step positions).
• U.S. Patent No. 6,729,954: "Battle method with attack power based on character group density," assigned to Koei Co. (a character group battle method which can express uneven distribution of attack power, defense strength or the like that is unevenly distributed in a group comprising a plurality of characters is provided).

Concerned? You should be.

Patent litigation is expensive with each party on average crossing the seven-digit line in trial preparation costs. However, there are steps you can take to reduce the possibility of a patent claim successfully being brought against you. For instance, you can conduct a search of existing patent filings for the critical aspects of any new product prior to development. For example the '954 patent held by Koei Co. described above covers a particular method to simulate battle. Once a search uncovers patents that may address your technology, you should evaluate whether to make adjustments to more certainly fall outside the scope of the patent. If adjustments to your game are impractical or not possible, your patent attorney can help you determine whether the patent is valid and, if so, the likelihood of success if the patent is enforced against your product. While such patent opinions are not inexpensive, they can insulate you from a later claim of willful infringement. A court may treble damages if willful infringement is found. Patent counsel can also help determine whether you should attempt to obtain a license from the patent owner. In some cases, it may be better to obtain permission from the patent owner at the development stage, rather than risk your substantial investment of time and money by developing a game under a patent cloud. Keep in mind that patents can issue after many years in the patent office and surprise the owners of well-established games.

Another way to fend off patent litigation is by obtaining your own patent. The video game industry is a booming business. However, as the sales of video games soar, the number of patents filed in this space remains flat. The industry appears not to have grasped the defensive value of patents. Patents can provide bargaining power and may create cross-licensing opportunities. Not only can you use your patent as a sword against infringers, but a patent can also act as a shield by encouraging cross-licensing programs as a resolution to infringement actions and discourage others from bringing a patent action in the first place if the plaintiff might be subject to a counter-infringement claim.

It is no longer necessary to sell video games to be profitable in the video game industry. Taking their cue from patent plaintiffs in other industries, some patent trolls generate revenue solely by enforcing their patents rather than developing and selling products. After working so hard to create an innovative product, you should carefully evaluate ways to protect yourself from patent litigation or else you could reach the GAME OVER stage before you even begin to really play.