Protecting a New Game Idea
I've been playing with an idea for a new table game over the past few years, and recently had the math analyzed. I've started speaking to patent lawyers now, but it seems that it is now difficult to patent games of chance.
I live in Canada, and have already been told games on chance cannot be patent in Canada. I was hoping to protect my idea in the US before I introduce it to the Canadian market, in hopes to one day expand south of the border.
My question is when did the patentability of these ideas change, and are there any other ways to protect my idea? I plan on getting a trademark in place for the name of the game, and the logo, but aside from those it seems it would be very easy to duplicate my idea.
Any guidance would be extremely appreciated.
Thank you!
Yes, I have done some more research and seems like its impossible to protect any game that uses a standard 52 card deck.
Perhaps my best hope is to trademark the name and logos, and just hope no one copies it?
While it will save me some start-up costs, it will be hard for me to prevent mimicking of my idea.
Thanks again!
Quote: RunbadI assume the same is true for international patenting?
Not really.
It's worth an hour or two with a patent attorney, really.
It's also worth your time to search "patent" in the Game Inventors Corner here. There was a lot of activity in that sub-forum talking about this in past years, and it's still current information to my best understanding. Look for "Bilski" references, which is the ruling that changed patentability in the US on gaming applications, and especially posts by RichN and Jon, who are our 2 patent attorneys specializing in gaming.
Those collective discussions will tell you nearly everything you might want to know. dm5's answer above is not incorrect, but it's not complete, either. The subject is complex and there are workarounds, conditions, and test cases still in progress, including my game.
Hoping we can find a solution to get this thing off the ground
Thank you for the reply.
Quote: beachbumbabsNot really.
It's worth an hour or two with a patent attorney, really.
It's also worth your time to search "patent" in the Game Inventors Corner here. There was a lot of activity in that sub-forum talking about this in past years, and it's still current information to my best understanding. Look for "Bilski" references, which is the ruling that changed patentability in the US on gaming applications, and especially posts by RichN and Jon, who are our 2 patent attorneys specializing in gaming.
Those collective discussions will tell you nearly everything you might want to know. dm5's answer above is not incorrect, but it's not complete, either. The subject is complex and there are workarounds, conditions, and test cases still in progress, including my game.
Yeah I should have mentioned I have never worked in the regulated gaming industry. Even if it seems like on its face what you are doing isn't a defensible patent you should still pursue it if it is tied to commercial success in your specific industry. I was just making a broader statement on patents rather than giving business advice.
My game is being examined at this moment by the USPO. If I get approved I will share it and if I get denied I will be appealing.
In addition to the utility patent option mentioned above there are other ways you can protect your product. For example, I have a federally registered trademark as well as a design patent on the layout.
Just like everything else in this endeavor nothing is easy and/or certain.
Quote: kobaljRunbad, I respectfully disagree that it is impossible to protect a game using the standard 52 card deck. The precedent most on point is In Re Smith. The court specifically put limiting language in the Order that illustrates it is not a blanket covering all table games. Now they mention using a different deck of cards as an example but I do not think that meant that to be the sole exception. Without getting too far into it, there's been some recent cases that have come out that in my opinion opens the door for individuals that are seeking to protect an original game as opposed to a variant like in the In Re Smith which is primarily based on a set of rules that already exist. To me this makes sense too. It is not easy to think up a game that is not a variant of poker or BJ.
My game is being examined at this moment by the USPO. If I get approved I will share it and if I get denied I will be appealing.
In addition to the utility patent option mentioned above there are other ways you can protect your product. For example, I have a federally registered trademark as well as a design patent on the layout.
Just like everything else in this endeavor nothing is easy and/or certain.
It's impossible at this point to have a game with a standard deck of cards, and no device to get it patented.
Any lawyer who tells you otherwise is grabbing your money for their time.
Quote: kobaljAs a lawyer myself it takes a lot for me to use the word impossible and this is not one of those times.
Unfortunately, you'll have to learn the hard and expensive way then my friend. But, best of luck in your endeavor.
Literally no chance of it occurring until something drastic changes with those types of cases.
Your best bet is to do what you're already doing with the trademark and layout design. That's all that can be done in this day of age.
1. The new game may incorporate patentable features, either deliberated added or as a natural part of the design.
2. The game distributors sell/lease games to casino operators, based on these games being IP protected (otherwise the operators would not pay licence fees).
3. Some games are protected by the merits of a trademark that has commercial draw. Games such as 21+3 and Lucky Ladies, whose base patents are expired, thrive on the remaining IP protection of their trademarks.
Some patent attorneys are better than others in getting their clients' patents through the gauntlet of the current USPTO system and its rules. If games utilize or adequately mix in patentable aspects (novel mechanical or electronic game play features into the game play of the cards/dice), it might get patented.
If you invest $20,000 overall into a new game, you can invest a few hundred on a consultation.
Edit/addition: Let me add that the real threat to a game's success is the marketplace odds; if a new game does not catch on, or has a poor field trial, or no installs after years of its creation/introduction, the IP point is moot. A patent is used to protect a commercial success, not a commercial non-entity.
Last four years?
Last five years?
Save your money. Put it on marketing your game to get installs and interest.
Quote: SM777Anyone care to list the table games patented in the last three years that don't use a special deck or include a device?
Last four years?
Last five years?
Save your money. Put it on marketing your game to get installs and interest.
Not all patents are the same, and with that being said, here is my general question to you without pointing to any specific patents:
With such recent precedent decisions in Alice and Bilski, do you now think that patents of table game prior Alice and Bilski decisions would be easily invalidated if face challenge by anyone (for example Scientific Games, Galaxy Gaming, Caesars, MGM, etc.. ) with deep pocket?
Quote: 777Not all patents are the same, and with that being said, here is my general question to you without pointing to any specific patents:
With such recent precedent decisions in Alice and Bilski, do you now think that patents of table game prior Alice and Bilski decisions would be easily invalidated if face challenge by anyone (for example Scientific Games, Galaxy Gaming, Caesars, MGM, etc.. ) with deep pocket?
Excellent question!
Quote: PaigowdanI would say legal advice on game patents are best procured from a real attorney, and not from an Internet forum. It can be expensive, with a undesired end result, but it is not 100% - 0%, though annoyingly close. "Probably not" is not "definitely not."
1. The new game may incorporate patentable features, either deliberated added or as a natural part of the design.
2. The game distributors sell/lease games to casino operators, based on these games being IP protected (otherwise the operators would not pay licence fees).
3. Some games are protected by the merits of a trademark that has commercial draw. Games such as 21+3 and Lucky Ladies, whose base patents are expired, thrive on the remaining IP protection of their trademarks.
Some patent attorneys are better than others in getting their clients' patents through the gauntlet of the current USPTO system and its rules. If games utilize or adequately mix in patentable aspects (novel mechanical or electronic game play features into the game play of the cards/dice), it might get patented.
If you invest $20,000 overall into a new game, you can invest a few hundred on a consultation.
Edit/addition: Let me add that the real threat to a game's success is the marketplace odds; if a new game does not catch on, or has a poor field trial, or no installs after years of its creation/introduction, the IP point is moot. A patent is used to protect a commercial success, not a commercial non-entity.
I personally would come up with some catchy names for the 21+3 and Lucky Ladies side bets rather than paying royalty for using the trademarked names.
Quote: SM777Anyone care to list the table games patented in the last three years that don't use a special deck or include a device?
Last four years?
Last five years?
Save your money. Put it on marketing your game to get installs and interest.
You did say 5 years ? Sorry Free Bet patent issued June 13, 2013. Not saying you do not have a valid point, just saying.
Quote: ronniefYou did say 5 years ? Sorry Free Bet patent issued June 13, 2013. Not saying you do not have a valid point, just saying.
US 20130150138 is a publication number. All patent applications get published these days unless you opt out. The same inventor has tried a bunch of other games, these were patents issued in 2012 & 2013. You'll notice that every single one of them involves executing instructions/operations on a processor.
https://worldwide.espacenet.com/publicationDetails/claims?CC=US&NR=8157632B2&KC=B2&FT=D&ND=4&date=20120417&DB=&locale=
https://worldwide.espacenet.com/publicationDetails/claims?CC=US&NR=8177614B2&KC=B2&FT=D&ND=4&date=20120515&DB=&locale=
https://worldwide.espacenet.com/publicationDetails/claims?CC=US&NR=8371917B2&KC=B2&FT=D&ND=4&date=20130212&DB=&locale=
https://worldwide.espacenet.com/publicationDetails/claims?CC=US&NR=8382568B2&KC=B2&FT=D&ND=4&date=20130226&DB=&locale=
This is the list I got them from:
https://worldwide.espacenet.com/publicationDetails/inpadocPatentFamily?CC=US&NR=2013150138A1&KC=A1&FT=D&ND=&date=20130613&DB=&locale=
Edit: Sorry, made an incorrect assumption. The first four links are to the allowed claims. Claims are your legal protection, the specification and drawings (for the most part) mean nothing in the legal process.
Quote: ronniefAre you saying the patent for Free Bet was not issued in the last 5 years ?
https://www.google.com/patents/US20130150138
Is that what you were pointing to? The June 13, 2013 date you provided matches and that is NOT a US patent. It is a PG Pub, a patent publication of an application. The claims are the originally filed claims, before the PTO has even looked at them.
Answer the question. Are you saying Free Bet was not issued a patent in the last 5 years ???
Give me a US patent number for Free Bet.
Quote: 777Not all patents are the same, and with that being said, here is my general question to you without pointing to any specific patents:
With such recent precedent decisions in Alice and Bilski, do you now think that patents of table game prior Alice and Bilski decisions would be easily invalidated if face challenge by anyone (for example Scientific Games, Galaxy Gaming, Caesars, MGM, etc.. ) with deep pocket?
Very good question. I'd think it'd be difficult to go backwards, but have no clue.
Quote: ronniefYou did say 5 years ? Sorry Free Bet patent issued June 13, 2013. Not saying you do not have a valid point, just saying.
Is that accurate? I thought it was covered by Push 22 patent which is probably 10 years old now.
I certainly could be wrong, and if I am, that's one game listed. But I think my point is illustrated. You had to go back five years to name 1 game. If indeed you are correct.
Oh you mean something like 21 Extreme or Kings Bounty.
Quote: SM777Very good question. I'd think it'd be difficult to go backwards, but have no clue.
I don't think it is difficult to go "backwards." The obstacle I see here is in the financial resource, but not the legal principles. And if you have more than sufficient money for a legal fight, Alice and Bilski precedents will be on your sides to give you a successful legal challenge in patent invalidation ...
Quote: SM777Is that accurate? I thought it was covered by Push 22 patent which is probably 10 years old now.
I certainly could be wrong, and if I am, that's one game listed. But I think my point is illustrated. You had to go back five years to name 1 game. If indeed you are correct.
I played Switch & Free Bet and I like them both. I can see the novelty in the concept of "switch" and "free bet", but I don't see the novelty in "Push 22" (or any other points) mechanism. IMO, the "Push 22" patent claim, if challenged, can be easily invalidated under Alice & Bilski principles.
Quote: HunterhillI personally would come up with some catchy names for the 21+3 and Lucky Ladies side bets rather than paying royalty for using the trademarked names.
Oh you mean something like 21 Extreme or Kings Bounty.
How about 21 & Threesome to replace 21+3, and Ten & Twosome to replace Lucky Ladies?
Here is my FREE advice to casino operators: Casinos should get together to come up with catch names for 21+3 and Lucky Ladies side bets, and make these names public domain. If all operators use the same public domain names then those side bets’ names will become household names & universally accepted, and with time the 21+3 and Lucky Ladies names will be forgotten and become historical artifacts.
Quote: 777Oh you mean something like 21 Extreme or Kings Bounty.
How about 21 & Threesome to replace 21+3, and Ten & Twosome to replace Lucky Ladies?
Here is my FREE advice to casino operators: Casinos should get together to come up with catch names for 21+3 and Lucky Ladies side bets, and make these names public domain. If all operators use the same public domain names then those side bets’ names will become household names & universally accepted, and with time the 21+3 and Lucky Ladies names will be forgotten and become historical artifacts.
Problem with something like this is then companies will no longer innovate. As a gambler, you'd never see a new table game or side bet. Scientific Games, Galaxy (even though most of their games are knock offs), AGS, etc will stop creating new content if they can't make money on it.
Your idea sounds good on the surface for the bottom line of the casino, but in reality it would stall the innovation in table games long term.
Quote: SM777How about 21 & Threesome to replace 21+3, and Ten & Twosome to replace Lucky Ladies?
Here is my FREE advice to casino operators: Casinos should get together to come up with catch names for 21+3 and Lucky Ladies side bets, and make these names public domain. If all operators use the same public domain names then those side bets’ names will become household names & universally accepted, and with time the 21+3 and Lucky Ladies names will be forgotten and become historical artifacts.
Problem with something like this is then companies will no longer innovate. As a gambler, you'd never see a new table game or side bet. Scientific Games, Galaxy (even though most of their games are knock offs), AGS, etc will stop creating new content if they can't make money on it.
Your idea sounds good on the surface for the bottom line of the casino, but in reality it would stall the innovation in table games long term.
Granting a 20-year exclusive right for a given patent would be enough incentive to encourage innovation. Perhaps exclusivity right should be extended further to account for profitability, R&D, marketing and other expenses, but a much longer exclusive right can also lead to destruction of innovation and hurt market place competitiveness.
Quote: SM777Your idea sounds good on the surface for the bottom line of the casino, but in reality it would stall the innovation in table games long term.
That and ruin the existing relationships with the suppliers that are responsible for providing almost all other gaming related revenue generating products for the facilities.
Even if they successfully ripe off these games from the supplier, don't you think they will simply raise prices on all other products that are used at the facility and likely cost them more money in the end?
Do you think that would be a wise business decision?
Quote: mrsuit31That and ruin the existing relationships with the suppliers that are responsible for providing almost all other gaming related revenue generating products for the facilities.
Even if they successfully ripe off these games from the supplier, don't you think they will simply raise prices on all other products that are used at the facility and likely cost them more money in the end?
Do you think that would be a wise business decision?
Perhaps it will ruin the relationships in the short term, but for the long term any harsh feeling among suppliers and operators will be put aside and they will kiss & make-up for their own business interest because the marketplace is very competitive.
What is the incentive to innovate if your invention is given a lifetime exclusivity? Copying is not a bad thing if it is done within a legal framework. The “ripping off” scenario you mentioned is very unfortunate, but it can create a useful outcome or an unintended consequence – it encourages innovation. We all “rip-off”, copy & learn from each other, and compete with each other. All these actions if they are done within the legal frame work will encourage innovation and benefit society.
Generic drug is a form of "ripping off," and society benefits greatly from generic drugs.
But if drug patents were suddenly determined to cover abstract ideas you can bet we the US would instantly lose its dominance as the creator of the majority of new drug innovation.
I think table game innovation will be similarly impacted over the next decade as a result of Bilsky & Alice decisions.
Quote: ParadigmGeneric drugs are marketed post patent expiration. If the original drug developer gets patent protection for 20 years and then post patent expiration loses exclusivity to the compound via generic drug manufacturer's, that doesn't feel like the original developer got ripped off.
But if drug patents were suddenly determined to cover abstract ideas you can bet we the US would instantly lose its dominance as the creator of the majority of new drug innovation.
I think table game innovation will be similarly impacted over the next decade as a result of Bilsky & Alice decisions.
I got ripped off, and I'm still mad about it, but I doubt there's much that can be done. You don't have to be trying to work in this business for long before someone screws you, that's for sure.
Quote: SM777Anyone care to list the table games patented in the last three years that don't use a special deck or include a device?
Last four years?
Last five years?
Save your money. Put it on marketing your game to get installs and interest.
So from your experience or the data that you have, do Alice & Bilski decisions have great impact on innovations of non-card games such as dice/craps and slot?
Quote: 777So from your experience or the data that you have, do Alice & Bilski decisions have great impact on innovations of non-card games such as dice/craps and slot?
I don't know the answer to that. I'd like to think something with dice could get patented, since it uses a "device" but I'm not sure on this. I think it'd be worth a shot. I'm sure someone on here has tried and can offer their experience with this.
However, with a standard 52 card deck, there's literally no chance.
Quote: ParadigmGeneric drugs are marketed post patent expiration. If the original drug developer gets patent protection for 20 years and then post patent expiration loses exclusivity to the compound via generic drug manufacturer's, that doesn't feel like the original developer got ripped off.
But if drug patents were suddenly determined to cover abstract ideas you can bet we the US would instantly lose its dominance as the creator of the majority of new drug innovation.
I think table game innovation will be similarly impacted over the next decade as a result of Bilsky & Alice decisions.
I think game inventors, game distributors, and patent lawyers should unite and form a strong lobbyist group to influence change in patent laws to encourage innovation in game development. Do casino operators really care about this?
The America Invents Act (AIA), and Hatch-Waxman Act were results of lobbying from industry groups.
Quote: 777I think game inventors, game distributors, and patent lawyers should unite and form a strong lobbyist group to influence change in patent laws to encourage innovation in game development. Do casino operators really care about this?
The America Invents Act (AIA), and Hatch-Waxman Act were results of lobbying from industry groups.
Innovation in game development is more impacted by the regulatory realities of gambling rather than patents. The games are already so confined in their design constraints its just people chasing after the last few scraps of games that meet the requirements.
Quote: 777I think game inventors, game distributors, and patent lawyers should unite and form a strong lobbyist group to influence change in patent laws to encourage innovation in game development. Do casino operators really care about this?
The reason casino operators do not care is that patrons do not care. No patron goes to casino to look for new games. Ask Roger Snow. Game inventors and distributors must create the justifications.
So to answer your question, I am fairly certain that all of the patents that were issued prior to Bilsky are not protected from or exempt from overcoming the Bilsky hurdles that now exists. So that would mean that there are probably a good number of patents that were initially granted by the patent office that are now not worth a whole hell of a lot as the party owning the patent would be unable to use it to protect themselves unless they can get around the Bilsky hurdles. However, I would be willing to bet a good number of those patent owners that obtained patents before Bilsky have other forms of IP protecting their game. I know in my case I tried to get as much IP as possible.
All that being said, I am a firm believer that concern over someone else stealing your idea is way way down low on the totem pole of important issues to concern yourself with. If you are fortunate enough to be one of the few that create a game that actually sees the inside of a casino I can tell you from first-hand experience that as great of a feeling as that is, it is only the beginning of the long and difficult journey. So I say you set aside an amount of money you are comfortable putting towards IP and you get as much as you can afford then you focus on what really matters which is making sure the game is as good as it possibly can be and you get it in front of as many decision makers as possible.
Literally no chance of it occurring until something drastic changes with those types of cases.
Your best bet is to do what you're already doing with the trademark and layout design. That's all that can be done in this day of age.)
I was going to let this slide but I guess I will try and save face a tad. Now not everyone or anyone for that matter may agree with me but let me explain why I think it is wise to try. If you really have intentions of taking your game all the way to where it is officially licensed for play in casinos you will want as much protection as possible. When you apply in the various jurisdictions they always want to review the IP you have and consider it in determining whether or not they will approve you but also when you plan on leasing the rights away I think it is prudent to have as much IP as possible. In the hypothetical below which person would you rather be.
Person A: Has a federally registered trademark and nothing else.
Person B: Has a federally registered trademark and utility patents pending. Even if you lose the initial examiner's decision then you can ask for his supervisor to review; then you appeal it to the Patent Appeals Board; then if you still lost you appeal it all the way through our court system. That whole process takes a number of years. If I had to guess I'd say at least 5 to 7 and that entire time you still have the pending status.
I think I have a good argument to prevail at some point in that process but even if I lost every step of the way I would much rather be able to say I have a utility patent pending during the most critical time period in a game's life (The first 5 to 7 years) than not be able to say it at all.
