Monday, June 16, 2014

Patent trolling comes to RPGs

So it's come to light in a recent Q&A session on Dan Davenport's #rpgnet channel that someone is attempting to patent RPG conversions.

[20:54] <+AJofUniversalHorizons> So far we have about 800+ original artworks, 4 Registered TMs, and a patent for changing genres. We hope to be here a long time!
[20:54] <+xyphoid> A patent on a rpg mechanic? Can you tell us more about that?
[20:56] <+AJofUniversalHorizons> Not in a few mins… also, it get to be law-speak gibberish very quickly.
[20:56] <~Dan> What (if any) game systems inspired you?
[20:57] <+AJofUniversalHorizons> IN essence, it’s a process patent for paper and online applications for transferring virtual entities from one genre to another.
Transcript here: http://gmshoe.wordpress.com/2014/06/16/qa-aj-schmidt-universal-horizons/
More transcript from after the initial Q&A here: https://gist.github.com/anonymous/63f9dca00f307302718a

You can find the application here: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=/netahtml/PTO/srchnum.html&r=1&f=G&l=50&s1=20140038722.PGNR

And here: https://www.google.com/patents/US20140038722?dq=%22universal+horizons%22&hl=en&sa=X&ei=A6KfU-DLOZCdkgXa-YDoDA&ved=0CB4Q6AEwAA

According to Wikipedia: http://en.wikipedia.org/wiki/Public_participation_in_patent_examination
In the United States Patent and Trademark Office (USPTO), third parties may submit prior art relevant to a published patent application within two months of said publication or before a notice of allowance is given, whichever comes first. In contrast to European practice, however, third parties are not allowed to provide any additional explanation of the relevance of the prior art. The USPTO requires a fee.[7]
The application was filed in February, so if I'm reading this right it may be the case that what little public comment phase is available in the US process may be over.

EDIT: The preceding strikethrough section is apparently wrong, see the comments below, there's still a small window left for third-party comment on the application. Thanks to Robert for pointing it out.

Here's the instructions for third-party comment: http://www.uspto.gov/forms/3prsubmission_instructions.pdf


And the relevant form: http://www.uspto.gov/forms/sb0429.pdf

It's still an application, so it's still possible that a patent clerk might see through the obfuscatory language and attempts to make it sound like a software patent instead of a game mechanic one, but I confess to being a bit unhopeful on that regard. There's loads of prior art in terms of existing products obviously, but I would not be surprised if patent review fails to even find any given how thoroughly cryptic the description is.

I'm not certain at this point whether the author is a crazy person or an asshole, or just harmlessly clueless, but the potential effect is the same. Contrary to popular belief,  there is history of game mechanics being patentable, at least in software:
http://www.gamespot.com/articles/patented-game-mechanics-that-might-surprise-you/1100-6369027/
http://arstechnica.com/gaming/2008/03/patents-on-video-game-mechanics-may-strangle-innovation/
And I did find discussion of it in boardgames here:
http://patents.stackexchange.com/questions/210/can-game-mechanics-be-patented
http://www.ipwatchdog.com/2011/12/22/patenting-board-games-101/id=21356/
http://www.quora.com/Can-you-patent-game-mechanics-or-game-design

There's also the famous Wizards patent on 'tapping' cards to consider. To my knowledge not many, if any, have attempted it for RPG mechanics, and it may be rejected as too abstract. I'm not feeling especially hopeful, though, and I don't think it's wise to dismiss it out of hand. If this went through it would give the author a beatstick to go after decades of games (including some of mine). If he's evil enough to stick to small fry and doesn't risk going after someone like Wizards or CCP/White Wolf (the latter of which have actually published quite a bit of prior art on the subject), he might even get away with it for some time, just like the Edge Games guy got away with it for so long by only going after indie video game publishers.

If you are aware of and capable of acting on any mechanism to fight it, I highly advise you do so at your earliest convenience.

If you wish to comment to the publisher, you can find their Facebook group here: https://www.facebook.com/pages/Universal-Horizons/556806171033910 Their email address is also given in the text of the transcript linked above.

27 comments:

  1. Patent applications publish at 18 months from filing unless the applicant opts out. I'm interested to see what is in this one. Also, please don't rely on Wikipedia for legal information - it is often pretty bad, as here where the information in third-party comments is completely wrong (they're citing an old rules). See instead:

    http://www.ecfr.gov/cgi-bin/text-idx?SID=d85dce1b8a14e6c5f92d950ad70f1edd&node=37:1.0.1.1.1.2.92.128&rgn=div8

    I wonder exactly what they're trying to cover, and what their argument is going to be that it is statutory subject matter?

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  2. Thank you for the correction, Robert. I appreciate it, and it actually does give me a little more hope that someone might be able to at least get a word in before close. The application was published from February, so it's still possible for comment after all. I'll revise the post.

    Do you happen to know where and through what channel said third-party comment must be made?

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  3. Found it. Here's the instructions for third-party comment: http://www.uspto.gov/forms/3prsubmission_instructions.pdf

    And the relevant form: http://www.uspto.gov/forms/sb0429.pdf

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  4. Oh, so the application is published. Thanks for stating that again, John. I initially misread the post to mean the application was filed in February. I'm off to look at the actual application now.

    I've done some of these third-party filings, but they're new enough that it is hard to say what the impact will be.

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  5. IANAL, but it seems to me that there is a pile of prior art on this. The venerable 1st ed. DMG had instructions for moving between genres (D&D to Gamma World and Boot Hill as I recall). TORG was built on this mechanic.

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  6. Indeed. There is a pile of examples of it. I've posted the links to the third-party comment application forms in several places. I'm not sure I'm equipped here to be able to assemble a form of my own (it seems to be a strictly paper process?), but I hope plenty of people now take the time to do so.

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  7. Prior art has to be judged with respect to the claims in the patent application. The first claim, for example, says:

    "1. A method of transforming a virtual entity from a first game to be useable in a second game comprising the steps of:

    a. Obtaining a set of created correlations between characteristics defining the virtual entity in the first game with characteristics available in the second game to define a virtual entity;

    b. applying the correlations to the characteristics defining the virtual entity in the first game to create a set correlated characteristics;

    c. creating a new virtual entity in the second game with the correlated characteristics

    d. the created correlations and applying the correlations to create the new virtual entity being independent of a player selection or input, and

    e. storing the created correlations in a non-transitory memory."

    So to the extent prior art anticipates the above or renders it obvious, they've got a problem. Maybe even a problem with respect to patentable subject matter. I haven't had a chance to read the application closely.

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  8. For what it is worth, the patent application has already been shot down during one cycle of examination. The applicants filed a Request for Continued Examination and are taking another bite at the apple. In the first office action since the RCE, the examiner is again rejecting all of the claims.

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  9. looks like they are cleaning up their facebook page. (read deleting all the bad press)

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  10. Yeah, someone just told me. I saved screenshots of my posts by I didn't quite get the whole thread.

    Kind of expected that, to be honest, but I felt it fair and right to at least try to talk sense directly to the source. A shame.

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  11. I wish I took screen shots of this conversation on their FB page. I wasn't thinking clearly. =/

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  12. I managed to save mine, but didn't get back in time to save the rest of the thread, for which I am sorry, and blame vanity. I honestly expected he'd just delete my posts instead of the whole thread.

    Here's the screenshots of my part of it: http://imgur.com/a/NaSXr

    Alas, the fact that Fred Hicks liked my post is lost to history. ;)

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    1. He seems to be doing more "damage control" over on his FB page. I've screencapped all the current comments, including my own, just to be safe.

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  13. I wonder what bigger players in the industry (read: hasbro) will have to say about this guys efforts...

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  14. I have known (and gamed with) the authors for many years, and am 100% certain that the patent is intended to protect their own developed intellectual property (which would not be fully protected under a copyright) rather than "a beatstick to go after decades of games." They have spent the better part of a decade working on a fairly unique system, and naturally want to protect their endeavors.

    That said, I would unfortunately agree that the terminology of the patent application might be too broad in terms of basic RPG mechanics. I can only hope that the criticism that has sprung from their application will spur them to take another look at the terminology. Perhaps a tighter definition will give them the protection they seek, while assuring the RPG community that they are not interested in overturning the apple cart in respect to RPG mechanics in general. The RPG world has always benefited by new and unique offerings. From what I have seen, their new system has much going for it, and I wish them the best.

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    1. In the RPG world, patents don't really work to protect your work from being stolen. They're ONLY useful as a beatstick.

      It's especially insulting given that EVERYONE in the RPG industry of 2014 is standing on the shoulders of giants; i.e., there are no games which were created whole-cloth new and their own mechanics are no doubt inspired by dozens if not hundreds of games which have come before.

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  15. Nice find on the lawyer profile, Caoimhe, BTW.

    You folks can find his resume here: http://www.linkedin.com/pub/james-zak/12/679/682

    He's a patent attorney. They hired a patent attorney to consult, and they want us to believe that line about 'it's just what the lawyer told us to do'?

    What did they think he was going to say?

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    1. Reading your link, 'Patent Attorney' is listed as his past positions. His current position is 'Intellectual Property Attorney' which would be in line with a consultation to protect a new gaming system. His experience may very well have affected his advice on how to protect their work, but that's what you hire a lawyer for, no?

      As I mentioned before, I am very familiar with the authors and believe sincerely their first and foremost thought is to protect their own work. Overturning the RPG world through patent lawsuits, especially without the legal manpower that companies such as Hasbro could bring to bear, speaks more of conspiracy theories than actuality.

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    2. Larry, at the time Zak filed the paperwork -- 2012 -- he was employed by VAS and was indeed a "patent attorney."

      That would be when they consulted with him, and when he filed for the patent on their behalf.

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    3. This is how VAS describes their services:

      Our Patent Law Services

      "We like to work with clients as early in the development process as possible. Our goals in pursuing a patent on behalf of a client are to:

      * Cast the patent as broadly as possible permissible while including claims of varying scope
      * Limit the ability of competitors to design around the patent
      * Provide a clear application which is persuasive to patent examiners, easily understood by the client and helpful to a jury
      * Reduce the need for or possibility of patent litigation"

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    4. Caoimhe,

      I had thought the filing was more recent, from what I understood. I have been in touch with the authors off and on through the past couple years as they refined their system, so I know a little of what they are trying to accomplish. However, I have not been as close over that time as in the past, so I am not privy to every detail of their company. All I can do is vouch for character over the many years that I have known them. Thank you for correcting my misunderstanding of Zak's timeline with the patent.

      Delete
  16. I asked him about what he intended to do, and he answered on Facebook:

    "We witnessed the craziness of copyright infringement with Gygax and many smaller companies from larger game companies. We sought the consult of a copyright/ patent attorney. He informed us patent law protects better than copyright law. After his research, he informed us our method of character conversion was unique enough to the patented. Thus we sought the patent to protect our idea. Your insight is right-on. To be clear: we will not attack, sue, or investigate previous/ current game systems for infringement."

    I mean, let's get serious here. There are two scenarios in which he could EVER use this patent.

    (a) A major company like WotC decides they want to steal his game mechanics and infringes on his patent. He tries to enforce it, and Hasbro's lawyers utterly destroy him, invalidating his patent while bankrupting him from legal fees.

    (b) A minor company with no assets worth suing over infringes on his patent, probably by accident. He tries to enforce it, and a groundswell of support for his target from other small game designers, freelancers, industry professionals, and informed RPG players leads to a crowdfunded defense fund that utterly destroys him, invalidating his patent while bankrupting him from legal fees.

    He got bad advice from a lawyer who doesn't understand RPGs.

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    Replies
    1. (Also, at no point could any patent like this have protected Gary Gygax from TSR with regards to Dangerous Journeys.)

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    2. I'd say he's already getting hit by that groundswell from the RPG community. At this point he's going to be hard set selling product or even buying advertising in the tabletop community.

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    3. I feel sorry for him, really. I can totally understand why he thought he needed to protect his work from being stolen (even if I don't agree that it's such a big deal), and I can totally see why he would think consulting with a patent attorney would be the right idea.

      But it's not, and it's hurting him more than it's helping him. And that makes me sad, because I really do want all game creators to prosper.

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  17. I don't think Universal Horizons is actually trying to do what people think it is. I wrote a blog post explaining why.

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  18. This seems relevant as well ... the basic upshot as I understand it is that the Supreme Court has ruled against being able to patent abstract ideas (methods) simply because a computer performs the function. I would think that this principal should apply to RPG methods as well. In other words, if you do something in an RPG as a Game Mechanic (abstract idea), and then program it, you can't patent the mechanic simply because you have a computer performing the method. At least that's my understanding. I'm not a lawyer, so I most certainly could have misunderstood the ruling.

    http://www.cellular-news.com/story/Legal/66391.php

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