Patenting Games: From Pieces to Pixels

From patenting classic boardgames like Monopoly and Battleship back in the 1930s to challenges with protecting modern innovations in areas like game development and VR, our experts are breaking down everything you need to know about patenting games so you don’t end up just rolling the dice when investing in protections for your entertaining innovations. 

As a bonus, in this month’s episode, we’re bringing you two dealers: Dr. David Jackrel, President of Jackrel Consulting, will be covering the physical realm of board games and toys. Kristen Hansen, Patent Strategist and software guru here at Aurora, will be covering all things computer and video games in the second half. 

David and Kristen are joined by our always exceptional group of IP experts. Two exceptional gamers who would never be regarded as NPCs:

• Dr. Ashley Sloat, expert hotel builder and securer of rights on properties of all colors, but especially the green ones.
• Ty Davis, who’s always playing chess when it comes to claims.

** Mossoff Minute **

Professor Adam Mossoff recently attended the annual Inventor’s Hall of Fame induction ceremony and discusses two sets of inductees and their groundbreaking inventions of the mRNA platform and CRISPR gene editing technology.

** RISE Award Winners **

To learn more about this year's RISE award winners including Dustin Webb (Absolute Concept Designs), Rebel Cultures (Della Fetzer), Sand Baggage (Michael Wahlstrom),  and Chefshare  (Dr. Erin Eatough), please visit https://www.aurorapatents.com/rise-up-with-aurora.html.
 
** Follow Aurora Patents **

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Thanks for listening! 

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Note: The contents of this podcast do not constitute legal advice.

Transcript

[00:00:00] Josh: G'day and welcome to the Patently Strategic Podcast, where we discuss all things at the intersection of business, technology, and patents. This podcast is a monthly discussion amongst experts in the field of patenting. It is for inventors, founders, and IP professionals alike, established or aspiring. And in today's episode, we're talking about games, from patenting classic board games like Monopoly and Battleship back in the 1930s.

To challenges with protecting modern innovations in areas like game development and VR, our experts are breaking down everything you need to know about patenting games so you don't end up just rolling the dice when it comes to investing in protections for your entertaining innovations. As a bonus in this month's episode, we're bringing you two dealers.

Dr. David Jackrel, President of Jackrel Consulting, will be covering the physical realm of board games and toys. Kristin Hansen, Pedant Strategist and Software Guru here at Aurora, will be covering all things computer and video games in the second half. David and Kristin are joined today by our always exceptional group of IP experts.

Two exceptional gamers who would never be regarded as NPCs. [00:01:00] Dr. Ashley Sloat, expert hotel builder and securer of rights on properties of all colors, but especially the green ones. And Ty Davis, who's always playing chess when it comes to claims. Before getting twisted up in the panel's non trivial pursuit today, We'd like to take you to the next installment of the Mossoff Minute.

A new monthly segment that builds on our Patent Wars episode and features short conversations with Professor Adam Mossoff, providing updates and quick takes on movements in patent reform, significant court rulings, innovation policy happenings, innovation history spotlights, occasional Star Wars references, and always guaranteed to enrich your cranium.

Adam recently attended the annual Inventors Hall of Fame induction ceremony. And discusses two sets of inductees and their groundbreaking inventions of the MRNA platform and CRISPR gene editing technology.

[00:01:47] Adam Mossoff: Recently inducted into the national inventors hall of fame for incredible innovators that have changed.

everyone's lives the world over. We're talking specifically about Dr. Carrico and Dr. Weissman for their [00:02:00] invention of the mRNA technology platform, and Drs. Doudna and Dr. Charpentier for their invention of the CRISPR gene editing technology. Both of their inventions are byproducts of the biotech revolution that has swept the world of the past 40 years, which began in the United States in the 1980s.

And even more importantly, their research which began in the 1990s and the turn of the 21st century was supported by and based on the reliable and effective patent rights that were secured in their innovations and thus promising them a return on their investments and the ability to commercialize their innovations in the healthcare markets around the world.

Unfortunately, patent laws have since changed in the ensuing years, and thus we will either be left with these innovations being the hallmark and apex of a long gone patent system, or perhaps their innovations will remain as lodestars for us to return our patent system back to [00:03:00] securing reliable and effective patent rights for innovators such as them.

[00:03:03] Josh: We're also publishing these clips from the Mossoff Minute as short form videos on Instagram Reels, YouTube Shorts, and TikTok. You can check out these shorts and follow us at Aurora Patents on all three platforms. Now, speaking of great inventors and their contributions to society, we're also very excited to announce the winners of our 2023 RISE Award.

Originally called the Relief for Innovative Startup Endurance Award, this is an annual award that we launched during the pandemic to help innovators struggling to endure the financial hardships that ensued. And an award that has given us so much joy we've continued to offer through the years beyond, but now is the recognition of Innovative Startup excellence Award.

For the winner, we provide a free provisional patent application, or $5,000 in service toward a non-provisional. And this year is in several years past. We've also worked with impressive runners up on awards, customized based on need, oftentimes helping out with things like patentability and landscape searches.

This year's first place full 5, 000 [00:04:00] award goes to Absolute Concept Designs. Dustin Webb and his team at Absolute are developing a hybrid, unmanned, aerial, underwater vehicle drone platform with the capacity to transition between air and water mediums and perform a number of different operations. At this time, we're unable to disclose anything more specific about the capabilities, but trust us, it's really cool.

The platform would be utilized for various amphibious missions instead of sending a person into contested environments. resulting in saved lives for our service men and women and increased security for the U. S. and our allies across the globe. We've selected Rebel Cultures as our first runner up to receive a 2, 500 patent services award.

Rebel Cultures is on a mission to help the world overcome critical plant shortages by inventing a new, high efficiency, lower cost method of plant production. Della Fetzer and her team are working on a lab free method to produce plants. Their device stimulates the replication of up to 10, 000 young plants in only eight square feet of greenhouse or warehouse production [00:05:00] space.

This invention will allow plant producers in the forestry industry to overcome their current barriers to producing enough trees to sustain our lives on earth. We've picked sand baggage as our second runner up, receiving a free patentability search and analysis. Sand baggage founder Michael Wallstrom designed a neoprene bag with a clever locking mechanism that uses beach sand for securing valuables at the beach.

Michael's inventor story is an inspiring one about the power of self bootstrapping when leveraging your own expertise. His company is 100 percent bootstrapped with zero debt. And he possesses all of the core competencies required to take his product to market without the need to outsource a single function.

And finally, but certainly not least, we've selected ChefShare as this year's final runner up, also receiving a free patentability search and analysis. Dr. Erin Etaw and her team at ChefShare are on a mission to help modern families reclaim their most precious non renewable resource of time and bring peace, connection, and joy back into weeknight dinners.

To that we say, hooray! They do this through a service that will offer heat and serve meals [00:06:00] specifically designed for busy modern families from local area chefs. The approach uses customer provided preference data paired with chef prepared weekly menus, cluster and match meal orders in order to reduce the price point of private chef services, making it more accessible to all.

We're so very excited to be joining these great companies in their innovation journeys. To learn more about these inspiring inventors and their impressive innovations, please check out RiseUpWithAurora. com. I'll be sure to include that in the show notes as well. As a final administrative note, this will be our last episode for the year.

We'll be taking next month to focus internally on some big tech upgrades to better serve our clients. But we'll be back in the new year with an excellent lineup of episodes with discussions on topics like AI implications for patenting, deeper dives on claim strategies, expert interviews with key players in patent reform, and a series we're very excited about that will explore strategies for crafting quality patents that will increase your odds of success if faced with the PTAB, or should you need to leverage the ITC to block import of [00:07:00] infringing products?

And as we head into the holidays and turn the corner from Thanksgiving, we want to give thanks to all of the innovators out there who are working so hard to shape our future. And to the tireless revolutionaries battling in the trenches of innovation policy and patent reform, fighting the good fight to ensure inventors have a path cleared for strong, predictable and reliable patent rights.

Thanks for all you do. It's truly a blessing to know and work with you all. Now without further ado, here's our conversation on game patenting. David and Kristen, you may now pass go. 

[00:07:32] David: Getting into the first part of the talk, Kristen and I are going to split today's talk, and I'll talk more generally about games and focused on physical games in the first half, and then Kristen will go more deeply into video games and computer games in the second half.

So, uh, yeah, really starting at a high level, there's various types of IP protection that you can get for games, and all of them have important and valuable uses. [00:08:00] So, of course, you can get patents on a game, but you can also get trademarks and copyrights. And they all cover different things. So, patents are, um, mainly what we're going to talk about today, and for games, they're a little bit, um, only specific things can be patented.

And, um, so you cannot patent abstract ideas, so therefore you cannot patent the rules of a game. That falls under ineligible. Subject matter to talk about also in a minute, a little more detail. So you can't patent abstract things. You can only patent physical, physical attributes of a game. Um, but there's a carve out.

This does not include printed matter. Printed matter would fall under a trademark or a copyright. Um, the other thing importantly related to games that you can patent are computer implemented methods. And, um. You'd say to yourself, well, how's that different from an abstract idea of patenting a [00:09:00] rule? Well, it's because you, it takes technology to implement something using a computer, and that computer implementation is essentially patentable now.

Again, Kristen will talk more about that and give some examples about how that works. Um, but trademarks and copyrights can also be very, uh, valuable IP protection for games, so what do they cover? Trademarks cover names, logos, slogans. Um, big benefit is they don't expire, but the drawback is they don't cover everything.

They don't cover physical attributes of the game, like patents. They don't cover visual designs, artwork, or text dialogue rulebooks. That would fall under a copyright. And, um, you know, Again, what, what these things are for is to what, what is IP four mainly? You wanna protect your ideas. You wanna stop copiers so you can stop people from copying the physical attributes of your game using a patent stop, people copying your name and slogans and [00:10:00] logos with trademarks.

And then the visual design and the artwork and the rule books can be protected using copyrights. So they all have, uh, different pieces of, of the puzzle really. In terms of patents, what can you patent? There are four categories of patentable inventions. You can patent machines, articles of manufacture, processes, and compositions of matter.

And there are explicitly three areas that you are not allowed to patent in. And these cover laws of nature, natural phenomena, And abstract ideas. And mainly for video games, what you're going to run up against is this abstract idea category, so you can further break that down into mathematical concepts, or an example of an abstract idea, or mental processes, or organizing human activity.

So, give some examples to really drive this point home, um, a few different federal [00:11:00] circuit cases from the mid, uh, from 2014, 2016, and 2018. Um, first one is Planet Bingo, where they had computer aided bingo games, and this was rejected, and in the, in the opinion, they said this was directed to an abstract idea of solving a tampering problem and other security risks during bingo ticket purchases.

Thank Um, the second example was in Ray Smith is a 2016 case from the Federal Circuit. This case was around a method for playing a wagering card game was also rejected. Similarly, in this case, they said it was similar to a method of mitigating financial settlement risks, which were described in Large, uh, in precedential cases around one on one that are relatively recent of Bill Ski and Alice.

These very famous cases now that have set up the current thinking of of this one on one [00:12:00] section and patent ineligibility. So these methods of. I'm solving a tampering problem or security risks or mitigating financial settlement risks. These are termed abstract ideas and a lot of times under that group of organizing human activity, which is not not patentable last example in Ray Marco Gulden are was a wagering dice game.

So this game had three dice with different faces marked, and then you wagered on an outcome. And this, again, they said, well, it falls within organizing human activity, abstract idea, this is not patentable. Interestingly, they also tried to patent the indicia, the markings on the dice, and that was also rejected due to the printed matter doctrine, which is that little carve out that you can't patent printed, printed matter, printed.

Printed things. And, um, these were all sort of confirmed, uh, um, cases. So [00:13:00] abstract ideas are something you can run into when you try to patent certain aspect of games. What can you patent? There's lots of things that you can patent. And so I've got some fun examples and I'll just sort of run through them and then go back and sort of hit some commonalities and some interesting points.

But, um, both Monopoly and Battleship were patented in 1935. Um, Scrabble has a patent on it, and then, not surprisingly, things like Legos, and Rock'em Sock'em Robots, and Twister, and Simon, Rubik's Cube, some of those are loosely games, I agree, but, um, those are, a lot of these things have, are physical, right, a Rubik's Cube, uh, uh, Twister has a very unique board that you play on, and it's a physical thing, so Um, even, um, Battleship was, in 1935, actually, was patented as an electronic game, and it went into all kinds of different [00:14:00] electronic circuits of how you would detect whether a battleship was in a certain position or not, what have you, and so, um, These are all like very physical, um, in the next couple, I'll go into another couple of examples where, um, of, of board games in a little bit more detail in a moment where we can look at the claims and really get into this, um, sort of, you know, uh, not to, uh, Kristen's going to talk about video games in the next half, but a few video game examples would be this, uh, Magnavox Odyssey patented in 1968.

And some, uh, promotional videos I saw were from 72, so this is like, came out in the early 70s. The Atari 2600 joystick was patented, you know, in 1980. More recent stuff, the Kinect sensor for the Xbox 360 was patented by PrimeSense. And so, physical things, um, electronic components of games, physical pieces of games, absolutely patentable.

Um, additionally, software, you know, um, the first person [00:15:00] shooter FPS was patented by id software in 1993. Um, and now in modern days, Warner Brothers comes out with the game, um, They'll file many patents around all kinds of aspects of the game, including for instance, game mechanics. And so, you know, now you're asking yourself, wow, like sounds like a rule and is that abstract, but it's not.

Um, when you frame it in the right way, according to the patent office, because it's a computer implemented method. And processes and methods are absolutely patentable, and if you implement something on a computer that is novel and non obvious and passes all the other bars, um, then it can be, can be patentable.

And Kristen will go into more of the video game stuff in a moment, but In terms of board games, I'm going to go through two examples to, uh, look at some claims and see how this is actually done. So this one is an apparatus and method of playing a board game simulating horse racing and wagering. [00:16:00] So they've got a board and it's got a race course on it and horses move around the race course and there's other pieces to this, to this game.

So what does the claim look like? They claim a board game simulating racing and betting. And this board game includes a game board, a plurality of player position markers, a plurality of betting chips, and a plurality of chance cards. So these are physical things. So this is patent eligible. Now the next question would be, is it novel?

Is it non obvious? And This was patented in the mid 90s, and at the time it was, so this patent was granted. And if you look at the claim in a little more detail, it describes a game board with various physical attributes of that game board. So the game board has a race, a race course and infield portion.

It has concentric tracks and an equal number of playing positions. It has, [00:17:00] um, you know, plurality of betting spaces equal in number to the number of plurality of tracks, etc. It describes the game board, describes all these physical attributes of the game board. And again, that was determined to be patentable, novel.

It was patent eligible, but also novel and and non obvious. So it was, um, It was allowed. Uh, interesting, this was claim one. Interesting, claim eight in the same patent was a method. And this method, method of playing a board game, simulating horse racing and betting, and the first clause is providing a game apparatus.

And this game apparatus has a game board, it has player position markers, it has It has betting tickets. It has chance cards. All of the limitations from claim one are repeated in this providing step or block of this method. Then the next blocks of the method are determine the order of play, placing player position markers, turning an odds card over.

Explaining some about the rules or some of [00:18:00] how you would play the game, but as we talked about before, I believe that if that providing step was not there and did not describe the physical attributes of the game, it was just the method steps, how to play it, that would have been ineligible. And so this is a way to patent a game.

Make it eligible and also include some of description of the rules or how the game is played in a patent, in a patent claim. Um, second example is very similar. Um, construction board game with a chance device. So, this is a board game to be played by more than one person. The winner of said game being the first person to fill an identified playing area on the board.

And, um, so, it, This board game comprises a board, playing pieces, and a die. Very physical things, and then they go into the physical attributes of those things. Um, the board has identifiable playing area, divided into identical [00:19:00] units that are each a basic geometric shape. And then the playing pieces are multiples of geometric configurations of a whole number multiple of those geometric shapes, and then you have a die that you roll, and so it's a unique, um, novel, apparently novel and non obvious at the time, uh, type of a board game that was, had, had, um, Novel and non obvious physical attributes that were described in this claim.

And almost by the playbook, again, claim 40 in the same patent as a method with providing steps to this very similar. You provide a board, you provide the playing pieces, you provide an indicating means, in this case, for example, a die. Um, and then, so all the physical attributes are included in those providing steps.

And then, The game being played by each player by actuating the indicating means, rolling a die for instance, um, [00:20:00] and then playing, playing pieces, having randomly identified geometric configurations, etc. So a little bit of the rules after these physical providing steps. 

[00:20:10] Kristen: We do this a lot with metal devices, too, because if we just did the process, it's kind of an obvious process sometimes with any other stent or any other, you know, device.

So that providing step can be really powerful. You just want to make sure you don't, uh, go too narrow, I guess, in that step, because then, It's pretty easy to design around. 

[00:20:39] David: Yeah, that's interesting. Um, right? The gains are not the only place where, um, it patent and eligibility problems come in with describing how something might be used or person like you said, just trying to differentiate the technology, um, describing physical attributes of something that is used in a particular way inside of a [00:21:00] method step.

Yeah, absolutely. That's that. That's interesting. Um, the last example is a little bit of a segway into Kristen's, uh, area. So this is a, uh, um, this is back to the Magnavox Odyssey, the very first video game console. Um, and so if you ever saw a, uh, a claim that was directed to physical attributes, this would be one.

Um, so this is really, uh, it's a great patent. It's super interesting. Uh, so how it starts is in combination with a standard television receiver, an apparatus for generating signals, representing a symbol to be displayed on the screen of said television receiver. This is just at the very core of a video game.

You've got a box that sends signals to a TV to put a symbol on the And what's in that box? Well, they really get into it. It's like a means for generating sync signals and a first and a second sawtooth wave. And then you've got slicers [00:22:00] and you know, um, a coincidence gate that, that when sync signals and the slicers and then RF oscillator, I mean, really get into the electrical engineering description of how one would do this.

And so the the fun story that I'll sort of end my path with here and before I, uh, before Kristen tells us more about video games is that the Magnavox Odyssey was interesting. It was notable, but they didn't really realize what they had. And so when Atari first released their first console, they paid a minor sum to Magnavox to license this patent and then Atari went huge, Magnavox realized the error of their ways, and then Mattel came with a competitor system called Intellivision, and, um, Magnavox said, all right, you've got to pay us a big license for this patent, and Mattel said, we don't think your patent's going to hold up in court, so they refused.

So Mattel, uh, uh, Magnavox sued Mattel for patent [00:23:00] infringement, and they won. And Mattel had to pay them several million dollars in damages, apparently. So, um, but that's not all bad news, because the Intellivision was like a pretty big success. Um, I had an Intellivision. We didn't have an Atari when I was a kid.

I had an Intellivision. So, um, this was a fun story for me to look back at. Mattel did really well with it. And if you want, if you can, if you look back, there's a, some advertisements from the mid eighties when this was coming out and they show the Atari 2, 600 next to the Intellivision and a famous actor, George Plimpton at the time was the, was the spokesperson here.

And it's just night and day. I mean, Intellivision's graphics are an order of magnitude better, and it's almost laughable, like when you show it right next to the Atari, so Atari got pretty good. Yes. And it started this little war between Mattel and Atari. Um, but the television did really well and Mattel, um, [00:24:00] licensed it even to companies like Tandy and Radio Shack and Sears.

And at, at one point in television had about 20 percent of the market share. So, um, I think they say here. Mattel put 1. 3 billion into, I believe, just this Intellivision. So the fact they had to pay a few million to Magnavox was probably, uh, probably in their, in their business plan. And probably was, you know, uh, justified.

Uh, but interesting story. 

[00:24:31] Kristen: No, it's good to see that history. Um, you know, I, I was born in the late 70s. So I. I saw a lot of things, but I saw a lot of these things later because they were just coming back as retro, right? 

[00:24:46] David: Right. Yeah, yeah, I was, I was born in the mid 70s, so I was not. Able to see that Magnox commercial from 72

But, um, yeah, so a lot of these early [00:25:00] systems at my friend's houses, . Yep. 

[00:25:03] Kristen: It's, it's, it's fun. Um, yeah, I, you know, Dave pinged me to do this second half because I've spent almost a decade of my life prosecuting and drafting, um, virtual reality and augmented reality, extended reality, mixed reality, and, uh.

Basically online streaming platform stuff for Google and. It has been an interesting ride to see exactly what you need to put in a claim to get it allowed, uh, to watch from the early augmented and virtual reality beginnings where you could basically take a game that is already patented as a video game and plop it into augmented reality or virtual reality and Lo and behold, yeah, yeah, that's patentable because we've never seen it described as being in virtual reality before and cut to, you know, five, six years into [00:26:00] that practice and no way you have to have something much more unique, much more interesting, um, and just more than just virtual space, right?

It no longer served. Like it used to, but either way, it's, it's interesting content and it's always fun to, it's fun for me to talk about anyway. I'm not a huge gamer, but I did grow up playing like first person games. My mom at the time, my mom at the time, my mom always, my mom was interested in first, first shoot, first, uh, First game.

What is it, Dave? It's first person. First person shooters. Yeah. Yeah, so she would play Doom and Hexen on the computer. And of course, in my spare time, I'd be like, yeah, okay, I'll play. But I never got into it like she did. So let's just get started here. So video games are electronic games that require interaction with a display device or a user interface.

And in those terms, [00:27:00] electronic. Interaction, display device, user interface. Those are important terms because those are the pieces that happen to be patentable as a video game. So the electronics can be anything from the hardware to the console to auxiliary devices that go with these systems. The interaction can actually be part of a method in the algorithm or part of a method that happens during the game.

The display device or the user interface display device again can be hardware. So if you develop like a new augmented reality goggle or headset, that could be a display device that could have patentable aspects. The software running on those display devices can also have patentable aspects and I spent a very good amount of time with inventors in that space in particular because.

Google was always working with and against Oculus and, uh, Sony and [00:28:00] Samsung and always trying to be the first, right, to the new, new device. So, uh, the other piece of this is the user interfaces. Uh, not a lot of people know that user interfaces are patentable. And that, uh, the graphical aspects of them can be, In a utility patent and or a design patent.

So that's kind of cool. So you could go after a couple different things there. Um, and often these inventions combine hardware with software innovation and that sweet spot is where you're going to get the most inventions in the area. Uh, some argue it would be software, but I almost always see a claim. In the claims that for these, these sorts of inventions with a hardware device doing some of this, and then we bring in some software innovation or some algorithms.

Um, and then 1 piece that I ran across as I was putting this presentation together, [00:29:00] this is something that is well known in the software space and well known to people who craft software claims, but I thought, you know, this team doesn't see. every single patent they write as a software patent. So I thought I would talk a little bit about, um, undetectability.

So sometimes video games and the content running them, they function in an undetectable manner. And what I mean by that is as a user playing a game in interfacing with a software game, they will not necessarily know how the content on the screen is being Performed in order to present it to them in a certain way.

They may not know the algorithm that allows the Illumination within a game, or they may not know the algorithm that calculates and determines how, how a character might move compared to how another character might move. These are things that you wouldn't really detect as like, um, a process that you could write [00:30:00] down and say, here's how they're doing that.

You would be able to maybe get a hold of a set of code if it were open source, or if you just, you know, they, this, the company would share some code with you, um, you know, because there are aspects of, of algorithms that companies, gaming companies in particular do share, um, so that others can see how they did this, even if you've got a patent on some of these pieces, Share it because they think it's nice to have the industry be able to see this so you could look at the software code and detect that this is going on.

But often you don't have access to the software code and all you see is the output. So if that's all you see, it's really difficult to detect what exactly they're doing in their algorithms. And if it's difficult to detect, it's actually difficult to see who or how somebody would infringe. And it's difficult to see how somebody would enforce those [00:31:00] pieces.

So what I often tell my software, uh, inventors that create things that are extremely esoteric and like undetectable, um, this would include AI, by the way, I tell them you need to think really hard about whether this particular aspect is something you want a patent on because It will likely not be enforceable easily, and it will not be detectable or infringable easily either, or at least you'll have a hard time proving infringement.

That doesn't mean it's a useless patent. It just means you need to understand as an inventor or as a company that you might have a portfolio where 30 percent of your patents are not detectable, but they are interesting just in case someone were to do it and you could detect that they were doing it your way, right?

So some ways that come up later, after you've gotten your patent for some undetectable software piece, and [00:32:00] you see three other players out there, maybe three other games, and you're like, hey, they did, they, they seem to be doing exactly what I did in my game, and I have a patent to that. So you look at the game, you, you cannot prove it, but video game companies advertise content, they share code occasionally, they use open source occasionally, um.

They have software specifications and product specifications and manuals and literature that you can actually research. So a lot of this is available. You know, to the common person, you have a lot of litigators out there who will start there and see if somebody has, uh, infringed the product of the company that they are representing by looking at other companies, literature, right?

And sometimes code otherwise, there's just really no way to detect what these algorithms are doing. If you think about it from [00:33:00] like a hardware sense, you can detect that Sensors are functioning somehow, and the output is from a certain kind of sensor. You can look at boards, uh, like, uh, electrical boards, and you can reverse engineer and see exactly how their product might be working for hardware and mechanical.

Same thing, right? You see how it's working. You see, um, how something twists, how something is, is shaped. That's a little bit easier, and they're clearly detectable. So anyway, long story short, When you're looking at undetectable features in your algorithms, you do really want to make sure your clients understand that they may not be looking at a licensing situation if it isn't obvious or clear exactly how they're going about these patentable pieces.

So usually with a method. You will distill what the inventor is doing into a broad enough set of steps that you could go after somebody doing that each [00:34:00] broad piece of that step in, in combination. And so usually you can get around this problem, but with video games in particular, you've got, you know, things going around in the background that.

Where you, you're maybe looking at three or four characters on a screen and and dictating how they interact and and then you've got user input. You've got all kinds of things that you're tracking, but that's not necessarily easy, easy to detect how they're doing that. So just a thought. Any questions on that, by the way, before I move on?

Good to bring up. Okay, so as I alluded to video game. Have patentable concepts that are hardware, software, uh, and interactions amongst the device and the software themselves. So, hardware, you're looking at controllers or viewing devices and headsets, um, video generation devices, um, set top boxes or consoles.

All of those things [00:35:00] are patentable in some version or some way, and some of them are patentable just by virtue of using a console with a controller and performing a software method, right? Some of, some of these patents you're bringing in all kinds of pieces to make this a patentable system. Um, things with sensors or proximity sensors, optics or computer vision has hardware aspects to it that would be patentable.

From a software perspective, you've got game mechanics, uh, interactive elements and gameplay elements that show up on the screen and act a certain way based on the input they receive or based on how the game is programmed. Uh, you've got some multiplayer interaction or views that can be part of a patentable aspect, you know, here of a game.

And I will say with that, just adding a multiplayer ability to your game is not going to get it patentable. But if you have a multiplayer game that actually [00:36:00] recognizes a few things and does something with those recognizable things and then also performs another piece, you may begin to approach something that's patentable and it's patentable because it's interesting multiplayer interactions.

One good example of that I can think of is like adding video conferencing aspects to your gaming. Platform or streaming platform that might be kind of cool. Um, and that's been done, but, um, there are pieces of that that have not. And what you will see is the gaming community will overlap the teleconference and productivity or office work community.

And you'll see that there are lots of things in like zoom and teams and video conferencing software like that. Is that. Are pulled from the gaming industry, or maybe are pulled from the, uh, even the acting or [00:37:00] the production industry of movies. So, all of these interface a little bit and they overlap a lot, um, and what you need to know about that is that sometimes it is shocking that you cannot get a certain patent through for a video game because it's already been done for like animation for movies, for example.

It's already been patented or it's already been well described, right? Um, the other software pieces that are patentable, graphics and animations do have an aspect that can be patentable because they're like a user interface, um, if you're describing exactly what's going on in the user interface or exactly how things are laid out, you can get a utility patent on that, but you can also look at, um, design patents for that, and that comes with animation stills or animation transitions too.

As I alluded to earlier, virtual reality, augmented reality, extended reality, mixed reality, all of those aspects, [00:38:00] all of those things have aspects to them and all of those will add something different to a game. So if you can use a piece of that in your patent, that's always helpful. Um, compression techniques are also software based innovation in gaming, streaming, broadcasting architectures, hosting architectures, techniques to use a game to improve something, right?

We're seeing this a lot in the medical industry where you pull in some sort of gaming app and it looks like a gaming app, but it's really trying to get you to do your exercises for the day because maybe you have to do your physical therapy. Um, so things like that, those become interesting software patents as well.

Um, now this is the hierarchy of game elements, and this is something that video game developers think about a lot. And the rest of the world just doesn't, the rest of the world just says, oh, okay, this is a [00:39:00] game, this is what it does. But they don't think about how this was put together. And so you've got most video game developers first and foremost thinking of what do I want my game to do?

What are the mechanics of my game or the dynamics of my game, right? So they're looking at things like, uh, do I have teams? Do I have virtual content? Do I have quests? Do I get points? Do I have levels? And they're moving on to decide what are the actual mechanics involved with the components that I've decided to have in my game.

And components on their, on their own are not always patentable. These are pieces that maybe would be patentable if they are part of a user interface. Uh, mechanics kind of look a lot like what Dave was referring to as rules in a game. And so you can have mechanics that are patently interesting, but they usually have to be combined with, uh, devices, hardware devices in the game or other.

[00:40:00] Process or method steps that push you into a computer implemented method rather than, uh, a game that has these kinds of challenges. Um, and then the top most kind of feel that that developers look at is what's the big picture of my system that I have to manage and what are they trying to do? These are dynamics.

These are what's the narrative? What's the relationship? What are these emotions and constraints? And how am I making my user feel right? Thank you. And these are often the most powerful because they are the coolest things that your user is interfacing with. But they're not easy to create and they're not easy to predict what's going to work in the world, right?

Those pieces are not often patentable. Those, the emotion, the narrative, the relationship, those are difficult to get patents on. But it is interesting to tie [00:41:00] that to a graphical element and generate output from that. So I have a patent application that I wrote one time for a set of inventors at Google who, they said, We have these virtual reality glasses.

We've created this virtual try on right? And we want the user to input their measurements and we want them to virtually shop clothes. And do this virtual try on without a mirror, without anything, they've got their goggles on, they're seeing everything, we give them an avatar, the avatar looks like them, and has kind of their measurements, and then we, we have them pick sizing of clothes, and we know the sizing of the clothes, because we've measured these things, and, and none of this yet was the invention, because they said, then we want to put the clothes on the avatar, and I, I thought, okay, that's, That's been done, right?

We've seen, we've seen software like this. And he said, [00:42:00] then we want to give the user a look or expression on their face based on how the clothes are fitting. 

[00:42:10] Ty: And I said, okay. 

[00:42:12] Kristen: What are some example expressions, right? And the guy says, well, you can have a real frowny face, or you can have an eye roll, or you can have a head nod or a head shake.

And, you know, he went on and on. And I said, okay, so what are some examples that we're going to show on the avatar? To indicate, you know, why the face is that way and what, what's going on and he said, well, I think, I think we could just have it really ill fitting. We could put a shirt on where, you know, it's too short and the sleeves are all kittywampus.

So I got off the phone and I thought about it and I thought, how am I going to, how am I going to describe this to my drafter, right? I've got to get somebody to do these figures. So I, I go looking for faces online for like [00:43:00] smiley faces and frowny faces and, you know, angry faces. And I kind of give that to the drafter and then I say, okay, this avatar has to wear a shirt, but it has to look like it's five sizes too small.

I want the belly hanging out. I want it too tight at the waist. And so these figures came back as some of the best figures I've ever seen based on the most ridiculous thing that I have said, right? They were beautiful. And on top of it, I had given I had given them a picture of one of the inventors. They said, does anybody want to be the face of the avatar?

My drafter is pretty good with like likenesses and making, making. the people in the images kind of look like real life people. He's just, he was really good at it. And so the one guy had volunteered, yeah, yeah, here, I'll send you a picture. And so he made him look like it. And so this poor inventor, who I've worked with several, several times, right?

So he was not upset. He was just [00:44:00] laughing because it looks like him in ill fitted clothes and pants and frowny faces and very upset in various figures. So it was, it was interesting, but that That was an idea of trying to get emotion into one of these games and, you know, I think it's really hard to do, but the way that was patented was to say a first expression be based on fit and so choice size selection, right?

And so you begin to see how you can enumerate things that would impact emotion or impact a display of emotion. So anyway, Thank you. 

[00:44:39] David: Yeah, that's really interesting, Kristen, like, um, that drafter had the best day at work that day when you did that project. So like, do I need to draft another nut and bolt or a hubcap?

No, people in ill fitting clothes that are upset about it. Yep. 

[00:44:59] Ty: Well, it's kind of [00:45:00] fun though, to be like in a patent too, right? To have your, your face memorialized like that. You 

[00:45:06] Kristen: know, I would often do that. I would ask inventors say, we have to put five fake names in here. Do you want your name in there? You know, it's going, obviously it's going to be listed on the patent, but do you want your mom's name in there?

Do you like the name this or the name that? And I didn't do it very often, but with software patents, you're kind of able to extrapolate really high level. Examples into the algorithms. And so with mechanical cases, you're kind of saying, you know, X is connected to Y and Y moves like this with respect to X.

And you're kind of limited to the language in software cases. You can extrapolate and expand in ways that I don't. I don't recognize in any other field that I've drafted in, so it's kind of cool, so I would always ask them, do you want a name in there that you like? Do you, you know, you want your kids names in there, [00:46:00] um, just because it was super easy.

If I'm putting player names in there, I could put player one or I can put, you know, and the mashup, whatever, you know. OK, so let's just do a couple of examples so I will go quickly. So this was a dialogue wheel. It actually was just a GUI that was put in there to talk about like how I can have a dialogue with my gamer or with my user and the way they did this.

They said this was the graphical interface displayed during operation of a program and it has the choice indicator. And the choice indicator has a bunch of selectable slots, and the slots give me a class of dialogue choices when selected. So. This particular claim just said, just described this graphical interface and said, this is what it can do.

This is what you can select. It was very broad. And then it said that this graphical interface is [00:47:00] consistent as to the position of dialogue classes throughout at least a segment of the program. So that just means it, it. Continued to be on the screen as long as it was valid and then the second piece second claim here said that this graphical interface comprises a radial choice indicator and that could have said, you know, a slide bar or radial dial could have said all kinds of things.

But the reason to put a shape like this in is because you're describing a graphical user interface. And if you have a competitor that does the exact same thing with a slide bar. They're going to get the claim because it it designs around yours, so it's always good to put a few things in that describe the GUI itself, shape wise or animation wise, but get those into dependent claims because if you don't have to use them, you don't want to use them.

They're just they're easy to design around. Um, this one was the most interesting. I had not heard of this one, but this was, um, a sanity meter element. And this is actually a [00:48:00] Nintendo thing. And they had a character sanity meter and it's this little, little green. Indicator bar. And basically what they did was they went after a method of operating a video game, including a game character controlled by a player, and they said they set a sanity level of the game character, and they modified the sanity level of the game character during gameplay, according to occurrences in the game.

And if you jump over to the flow chart here, the occurrences were, did the game or creature, uh, Did, did the user come into a game creature or a gruesome event? So did they experience these things, ? And so basically the claim goes further down to say, if they experience this feature and it's, it's a gruesome event, usually you modify the sanity level.

And so thereby making the game harder to play because your character, character sanity is going. Down right or up based on how [00:49:00] many gruesome events you run into. So it brings a psychological piece to this. So I thought it was interesting. 

[00:49:06] Ty: I feel like I need that on a daily basis, but not for like gruesome things, like paper cuts and other weird things.

What's Ashley's sanity level? 

[00:49:15] Kristen: My work product goes down as I experience gruesome 

[00:49:19] Ty: events. 

[00:49:21] David: This is actually a parenting, it's like a parenting AR application actually. How it detects strange things your kids are doing and your sanity level just goes down and down and 

[00:49:34] Ty: down. 

[00:49:36] Kristen: Well, and I think what made this most interesting patently is sure you've got a sanity.

Uh, level and you've got a UI piece that shows the sanity level and you can modify it. But the most interesting piece, controlling gameplay according to the sanity level of the game character. Right? And this is done by varying game effects according to the game character sanity level. [00:50:00] That's really interesting.

You change what's going on in the game. 

[00:50:04] Ty: In real life, it's Moloch at play controlling your sanity level. And a feedback loop. Murphy's Law, huh? 

[00:50:12] Kristen: It's the worst feedback loop ever. And then this, 

[00:50:16] David: this is the last one. Can you just talk for a second on that one? I'm curious. Like it, it, it's a method, it's a method of operating a video game.

So in your mind, this is clearly a computer implemented method. So it's a patent eligible. And if that's the case, like what, what in the claim makes it that? Makes it so yes, 

[00:50:35] Kristen: so this is because this is a method so that that's patent eligible eligible subject matter and then we're operating a video game and in your spec somewhere you'll say what operating a video game is and it's likely using processors and consoles and computer.

pieces and products, right? So because that is fully defined in your specification, it is okay to not say [00:51:00] computer implemented method. Other areas that are outside of video games and outside of like very clear computer oriented things, I often will say a computer implemented method, and I will put it in there to make it very clear.

Because I maybe don't want somebody to think if I'm working on a medical device and I have a computer implemented method that I'm sorry, and I don't say computer implemented. I maybe don't want them to think that this is just a method of operating this. This physical device. I want them to know this is computer implemented and this is something going on in the software of this device, right?

This is not just hardware, so it's kind of a choice. It's the same thing with putting a processor in or not putting a processor in. As long as you've got it in your specification, you're okay. But, you know, you will run into the stickler of examiners who will say you need to put [00:52:00] processor and memory in your claim, because this is a computer claim.

The, the exception to this, if I were to write this exact same claim as a computer readable medium claim or computer program product claim, I would make sure I had my processor and my memory in that claim, even if my method claim was a little bit broader. 

[00:52:18] David: Interesting. Okay. Yeah. Yeah. 

[00:52:20] Kristen: Thanks. Okay, the last one is just straight hardware with a little bit of software operating on it.

So this was a wireless control unit for converting a video game system, having a console and game controller ports. The system, the wireless control unit, is actually something that runs and is installed within the game controller itself, usually. So this Wireless control unit is claimed as having a game controller with a plurality of user operable switches for producing game information signals, and that game controller also has a sleep function for powering down the game controller in response to detected inactivity of [00:53:00] the operable switches for a period of time.

And then the wireless control of the unit also has a console interface. For looking at all of this content and receiving these signals. So you have the game controller itself, but you also have the wireless controller unit that's installed in the game controller. And the fact that these method pieces, like for powering down for XYZ for performing things.

Those are software triggered hardware changes. Okay, so I did not look but I expect to see another. Claim in this in this application that goes after a method that looks for these things and then creates these power down occurrences. Okay, so I just wanted to give you kind of a software, a GUI element and a combined software and hardware.

Example. I like it. That's it. Any questions? 

[00:53:54] David: Awesome. I had a question question real quick and 

[00:53:58] Ty: it's just kind of [00:54:00] hypothetical that I kept running through, 

[00:54:02] David: you know, kind of what we've learned from David's, you know, game board claim sets. What if, 

[00:54:10] Ty: say I was an entity that developed a, a very universal, very broadly used VR system, um, And, you know, once that was found novel, whatever, 

[00:54:21] David: just going through, instead of having, you know, providing that game board element on 

[00:54:28] Ty: the, you know, game play methods of those, of those games, could you just replace that with the very broad universal VR system and 

[00:54:37] David: pretty much re patent game boards or something?

Does that make sense? I guess. 

[00:54:43] Kristen: Yeah, so you're trying to, you're trying to broaden that initial claim that had more aspects of your system in it. To just saying a VR system and then keeping maybe your other three elements. Yeah, I mean, you can try that, but what happens is this, if you're, if [00:55:00] you don't have enough explicit VR system elements to overcome prior art being applied against you, then You'll, you'll be rejected if you feel like you have three or four clauses in that claim that are really specific to how your game works and those maybe would stand on their own if we didn't have the requirement of having a piece of hardware around this, then you could try to go after that alone on a processor and in a dependent claim, you could say we're in the processor is operating a virtual reality system or world or whatever, right?

So you could try it. Um, I typically would not, because often those, um, those inventions aren't detectable when you start getting in the weeds in those, those clauses below your system, but if they are, and it's important, right, it's an important aspect, it's [00:56:00] something that you know the world is working on, um, then it would maybe be worth it, because if you can prove somebody's infringing later, you have it.

A patent, right? You don't have to, you don't have to wonder if somebody else is going to sue you because you had, you had the idea, but you didn't patent it, right? So it's, it's kind of a middle of the road decision. It's very hard to decide to patent or not patent undetectable content. 

[00:56:27] David: Okay. Thank you.

[00:56:30] Ty: Thanks everyone. I really, really appreciate it. 

[00:56:32] David: Yep, thank 

[00:56:33] Ty: you very much. That was interesting. 

[00:56:34] Josh: Alright, that's all for today folks. Thanks for listening, and remember to check us out@aurorapatents.com for more great podcasts, blogs and videos covering all things patents strategy. And if you're an agent or attorney and would like to be part of the discussion or an inventor with a topic you'd like to hear discussed, email us at podcast@aurorapatents.com.

Do remember that this podcast does not constitute legal advice and until next time, keep calm and patent on.