I am an injury attorney as opposed to a patent attorney but given my experience in dealing with the IP surrounding my game COU, I am confident in answering this question. It is my understanding that when you get a patent from the patent examiner that in and of itself is of limited value. The reason that is so is b/c even if you received a patent from the examiner there is no guarantee the courts will decide that the patent is enforceable. In other words, the patent in and of itself gives you the right to try and protect your product against those you feel are violating your rights it doesn't guarantee anythign more than that. If you feel someone is violating your rights then you use your patent to go after them and see what the courts think.
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.
Thanks for this post from:
(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.)
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.