16 March 2021

Why IP matters to the UK video game industry

In this article for PCR, Mathys & Squire Partner Andrew White and Technical Assistant Conor McGuinness, look at the patentability of computer games in Europe and the UK and address the common misconception that computer games are not patentable.

It was announced recently that US video game publisher, Electronic Arts has agreed to purchase UK-based video game publisher Codemasters for approximately $1.2 billion. UK-based companies are, therefore, clearly playing a leading role in video game development and publication. The UK consumer market is of similar scale. The UK gaming market is currently the sixth biggest globally with UK consumers spending an estimated £5.35 billion on game hardware and software.

As the UK video game industry looks set to only grow, developing a bespoke intellectual property (IP) strategy is of the utmost importance. Obtaining suitable IP rights provide you with the opportunity to ‘fence off’ your innovations from competitors and potentially lock-in your customers. IP rights can also significantly push up the value of your company.

Patenting computer games in Europe

In essence, a modern computer game is a piece of software describing a set of abstract game rules configured to be executed by hardware such as a PC or a games console. The European Patent Office (EPO) will grant patents to inventions that they consider provide a technical solution to technical problem, but does not recognise, among other things, programs for computers, playing games or mathematical methods, in and of themselves as inventions (Art. 52 (2),(3) EPC).

On the face of it, the ability to obtain patent protection for computer games, therefore, looks bleak.

However, the EPO will consider a computer program product an invention (and, therefore, potentially patentable) if, when it is run on a computer, it produces a further technical effect which goes beyond the ‘normal’ physical interactions between program (software) and computer (hardware) (see Headnote of T 1173/97).

So, when it comes to video games, although patents cannot be sought for the rules of a game in and of themselves, there may be patentable subject-matter in the way the rule of the game are implemented, provided there is some technical effect which goes beyond the ‘normal’ physical interactions between program and computer.

What is patentable?

As an example of what is considered to be patentable, an application claiming a game wherein the probability for a character appearing on a game map was varied was, in contrast to the previous case, found to be patentable. The probability calculation was considered to be technical because it solved the problem of how to modify the game program such that it generated encounters in a less predictable manner (see T 0012/08).

As another example, it was found that a guide display device for use in a video game system was allowable subject-matter. In more detail, the guide display device highlighting a first character so that the player could identify them and also a pass guide mark which allowed identification of a second character to whom a ball is to be passed. The pass guide mark continued to be displayed on the edge of the display area when the second character left the visible area. It was argued that the technical problem here related to conflicting technical requirements, namely: a portion of an image is desired to be displayed on a relatively large scale (e.g. zoom in); and, the display area of the screen may then be too small to show a complete zone of interest. which has to be considered in the inventive step discussion. The Board asserted that resolving the conflict by technical means implies a technical contribution (T 0928/03).

From the above review, it is clear that computer games, or at least aspects of the computer games, are patentable. Bearing in mind the size of the potential UK market, computer game developers and publishers should be actively considering the patentability of their creations, as part of a wider holistic IP review that also includes other IP rights such as trade marks, copyright and confidential information.

This article was originally published in PCR Magazine in March 2021.