Intellectual Property and Dice Mechanics

[J B Bell]

There's been some debate about the legality of lifting dice mechanics from other games, with a few different opinions.  So, the usual disclaimer at the head of this thread: there are no lawyers in the house.  If you're actually a lawyer, say so!  We'd love the advice.

There's a very old precedent that says that systems as such are not copyrightable and not patentable.  Thus, the system of double-entry accounting cannot be protected by intellectual property laws, but a particular presentation of that system is.

Unfortunately, the law is worked out by lawyers and judges.  In the USA in particular, this latter bunch seem extraordinarily eager to hand over all intellectual property to larger corporations (or a corp. of any size that can afford a hot lawyer and good PR), and so we've got the whole mess with the patenting of bits of software, which programmers call "algorithms" and mathematicians call "math."  I won't get into the absurdity of some of the patents that have been issued; just take it as a cautionary note that things at present are horribly stupid.

That said, game systems are probably safer than programs thanks to their being easier to understand than computer programs.  A game system is uncontestably printed matter that tells a human how to do something, rather than a set of instructions that can cause a tool like a computer to do something.

I think that not understanding this is part of why we see the silliness associated with unacknowledged lifting, e.g., the profusion of terminology to describe human capability ("effectiveness" in Forge lingo), so that we have "grace", "agility", "physical finesse", etc., etc., for the humble "dexterity."  Of course, you would want to avoid actual trademarked terms, such as SPI's "Nazi" (hyuk hyuk--is this story actually true?).

Now for some opinion:  I think not being able to copyright or patent the bare bones of a system is just as it should be, but agree that acknowledging any such lifting is only courteous.

Now for a request (which I will do a bit of research on):  has anyone seen any case law of a game publisher being sued for copying a system but not its unique terminology or presentation?  Or anything similar?  Unfortunately, the only place the issue will really play out is in real court when someone really sues and the defendant actually puts up a fight rather than settling.

--J B Bell

[woodelf]

> Of course, you would want to avoid actual trademarked terms, such as SPI's "Nazi" (hyuk hyuk--is this story actually true?).
>

no.  1st, it was TSR, not SPI.  2nd, it was in the Indiana Jones RPG, licensed from Lucasfilms.  3rd, the "TM" was on a cardstock paper miniature (the game came with a bunch of them) of a Nazi soldier minion.  thus, where the individual characters would have their name, this figure just had the generic "Nazi".  4th, the "TM" was on the image (which was a still from one of the movies) not on the word "Nazi".  so, it was Lucasfilm who was claiming the trademark, but on the still from the movie, not the word.

i wonder if this one will ever really die.

[J B Bell]

Thanks for the clarification, woodelf.  It had the feel of urban legend.

A further clarification, as I promised I'd do some homework:  OK, there's a thing called a "utility patent", and it DOES include "processes".  So in theory, you might be able to patent a dice-rolling method.  But as a process, it falls under patent law, not copyright.  So far as I know, no publisher has ever gotten a patent on a dice method (or on any of the underlying methods of a game system), so this one appears to be in a grey area, as I suspected, but maybe not so grey as originally thought.

I've also put up a query on an IP website asking about this, maybe I'll get some useful cites from it.

--J B Bell

[C. Edwards]

Does WotC have some sort of patent on the mechanics of the Magic: the Gathering CCG?  I remember there being some stink with other card games that used similar mechanics.  I don't know how closely the mechanics were copied though either.


-Chris

[Zak Arntson]

If it is possible for patents to be taken out on game mechanics, then I'd seriously consider patenting game mechanics and then releasing them to the public for free use.

Any patent lawyers on the Forge? What with Amazon patenting one-click, and I also remember Magic patenting their card-flipping system (could be rumor), it would be pretty disconcerting to see someone patent a game mechanic.

At the same time, Wizards set a very cool precedent by making their basic mechanic free for use.

[Gordon C. Landis]

OK, patents . . . the world in which I still, somehow, make my (currently meager) living.  No, NOT as a patent agent/attorney (sorry, I can't bring that level of expertise to bear) - but I work every day with heaping gigabytes of patent data, and our software is designed to help companies' make sense of said heaping gigabytes (ha-ha, "said" - that's a patent joke.  What, no one gets it? :-)  I've picked up a bit along the way.

First of all, it is generally percieved (which some accuracy) that it is *possible* to patent just about anything in the US nowadays, as long as you're willing to throw enough money and time at a decent patent attorney.  We're talking into the hundreds of thousands of dollars here, and if it really *isn't* a patentable idea, you may NOT get the patent (and thus will have wasted a ton o' money).  But for some folks, it's worth the investment.  That said . . .

You never *really* know if a patent will hold up until it gets challenged in court.  Just because you "have" a patent doesn't mean it's a GOOD patent.  Of course, to find that out someone has to (again) be willing to put significant time and money into a court case.

On the WotC CCG patent - it exists, and has not been overturned.  By my inexpert reading, the key protection in the patent is to the idea of a large, variably "rare" pool of cards, from which a subset is selected in a particular way for a particular game - the whole "deckbuilding" phenomena, which allows for the "collectible" in CCG.  Many have claimed that this was in fact NOT an innovation, that there is "prior art" (i.e., pre-patent material) that does essentially the same thing, but until/unless someone takes that issue to court and wins, WotC "owns" the idea behind CCGs.

Hope someone finds that informative - understand that patent law is a very complex beast.  You can go to the USPTO web site (www.uspto.gov, I believe), and search for the word "game" in their patent db - there're lots of 'em.  Many, of course, are gambling-related (the REAL "gaming" industry), but some are boardgames, computer games (apparently Chris Crawfords' Erasmatron for the creation of electronic "storyworlds" has a patent), and the like.  IMO, there's not much chance of a patent on RPG mechanics actually holding up if challenged , but I wouldn't be surprised if a "Processs and Method for the Creation of Characters in an Interactive Storyworld" was granted one day . . .

Gordon

[woodelf]

So far as I know, no publisher has ever gotten a patent on a dice method (or on any of the underlying methods of a game system), so this one appears to be in a grey area, as I suspected, but maybe not so grey as originally thought.

it depends on who you talk to.  there are plenty of people who believe that the patent office has given up any attempts at policing what they patent, and pretty much grant a patent on anything that is original and not on the verboten list, and are leaving it to the courts to sort out, should anybody challenge one of these patents.  IOW, that the fact that a company has a patent is no indication that that patent, or even any patent on a like object/process is actually legal.  these people point out, for example, that it takes some very fast talking to explain how an algorithm is patentable, while a mathematical formula is not.  in this line of thinking, it should be pointed out that the USPTO has a circular, and has had it for a decade or 3, that explicitly and clearly forbids the patenting of a game or game mechanic, unless there is sufficient physical componentry to merit patenting as a device.  it is also true that this is a circular issued by the USPTO, and does not have the force of law.  but if it is correct, then, to take an example, Mousetrap is about the only patentable boardgame in existence.  and certainly no RPG mechanic(s) can be patented.

Does WotC have some sort of patent on the mechanics of the Magic: the Gathering CCG? I remember there being some stink with other card games that used similar mechanics. I don't know how closely the mechanics were copied though either.

i believe there are two patents (a quick Google search turned up only references to them, not the actual patents, so maybe the USPTO isn't fully online).  one is on the "trading card method of play"--that is, the fact that the game elements are variable, tradeable, and collectable.  should anyone take this one to court, and WotC win, it would mean every TCG/CCG is in violation.  the 2nd patent, if it exists, is on 'tapping'--that is, manipulating the game elements physically to indicate their current use.  i remember some talk about this, but don't remember if it accurately reflected a patent, or was just rumor-mongering.  my understanding is that, for all practical purposes, every TCG/CCG on the market (then and now) violated the patent (or one of the two patents), and WotC has demanded some sort of royalty from all of the manufacturers.  i believe there was a lot of grumbling, some paid up, some didn't, and WotC has not bothered to press suit against those who didn't (who were mostly the smaller companies).  i could be *very* mistaken about the outcome of the patents, however.

If it is possible for patents to be taken out on game mechanics, then I'd seriously consider patenting game mechanics and then releasing them to the public for free use.

see above.  according to the USPTO, it isn't.  according to the legislation, it's undetermined.  if there's on-point caselaw, i don't know of it--and neither does Ryan Dancey, so i doubt there is.  but then there's the M:tG patent(s).  you *might* be able to copyright game mechanics, though that's *very* doubtful in my mind--but Dancey has steadfastly maintained that WotC/Hasbro is behaving as if it's possible not just because they have the money to stare down anybody else in the RPG industry, but because they sincerely believe it.

Any patent lawyers on the Forge? What with Amazon patenting one-click, and I also remember Magic patenting their card-flipping system (could be rumor), it would be pretty disconcerting to see someone patent a game mechanic.

again, see above.  lot's of IP people i've talked to have pretty much decided that the USPTO is bonkers, and granting ridiculous patents rather than even consider delving into the technical issues being raised.

At the same time, Wizards set a very cool precedent by making their basic mechanic free for use.

or they are setting a very scary precedent, trying to make it generally accepted that RPG mechanics are copyrightable before any case actually comes to court to determine the matter.  after all, the very fact that people are using the D20STL/WOGL is an implicit acceptance that the stuff being reused/licensed is owned by WotC, and thus can't be reused without those licenses.
[/i]

[Armin D. Sykes]

There is one WotC patent on card games, the one that you found references to, woodelf. That patent includes the tapping (changing the orientation of the card to indicate use) as well as a variety of other factors used by Magic: The Gathering.

Armin

[Blake Hutchins]

OK, I'm a lawyer, though not an IP one.  I can say from my experience in practice that there's a difference between having the legal right to something and the practicality of enforcing that legal right.  Accordingly, I'd be surprised if any RPG dice mechanic patent -- assuming it's even possible to go there in the first place -- was worth the money to prosecute.  Most game producers in the paper RPG industry probably don't have enough cash to make it worth anyone's while to squeeze 'em.

My opinion is that WotC was probably trying to cull competition with Magic more than to skim from rival CCG companies.  Then too, there was probably the need to establish the patent in the first place --  before someone else did, as that someone else COULD have profited from an IP suit against WotC.

Best,

Blake

[Seth L. Blumberg]

OK, I'm a lawyer, though not an IP one.  I can say from my experience in practice that there's a difference between having the legal right to something and the practicality of enforcing that legal right.

In IP, as I understand it, the issue is often "Can we afford not to enforce our legal rights?" Adverse possession, baby--you snooze, you lose.

--
Seth L. Blumberg

[Misguided Games]

Yup.  WotC is currently making money off that patent from the makers of Yu-Gi-Oh (not Upper Deck, but the japanese company, sorry don't know the name).