The gaming industry is among the fastest growing industries. Gamers today have many options, from card games and board games to gesture recognition and multiplayer online games. Game developers and promoters however often find themselves wanting for options to protect their business interests in the game. In a nutshell, game developers and promoters wish to prevent the games developed and/or promoted by them from being copied by their competitors. While the legal framework may not provide any provisions to prevent all the aspects of a game from being copied, a well defined intellectual property protection strategy can protect business interests of game developers and promoters to a large extent.
Several aspects as a gaming business can be protected under trademark law. One of the advantages of trademark registration is that the registration can exist indefinitely. Some of the aspects of a gaming business that can be registered as trademark are listed below.
Name of the game, ex: Alchemy and PLANTS VS. ZOMBIES
A tag line associated with the game or the gaming company, ex: "Live in your world, play in ours" a tagline adopted by Sony
Logo of a game, ex: PlayStation logo designed by Manabu Sakamoto for Sony
A distinctive package in which the gaming material is enclosed and sold/marketed
Characters in a game
Protecting the above aspects of a gaming business under the trademark law can go a long way in preventing competitors from passing off their offerings as those of the original creators/promoters of the game.
Copyright is exclusive legal rights granted to a creator of an original work. Copyright can protect artistic works, cinematographic films, musical works, literary works, dramatic works, sound recordings, as well as computer software. A common misconception is that copyright can protect rules of playing a game. However, in reality, copyright cannot protect rules of playing a game. For instance, the rules of a game may be expressed in a gaming manual. A person who makes copies of the manual without authority may violate your copyright. However, a person who follows the rules of the game and plays the game, even without your express authorization, will not be violating your copyright. While copyright law may not enable you to prevent others from following the rules of the game you might have created, the law can protect several aspects of the gaming business. Some of the aspects of a gaming business that can be protected under copyright law are listed below.
Source codes and object codes of digital games, such as video games
User manual of the game
Characters in a game
Background music in a game
Other multimedia content in the game
Other artistic content associated with the game
A utility patent can protect aspects of a game related to science and technology. A product or a process which is novel and non-obvious can be protected under patent law. Some of the aspects of a game that can be protected under patent law are listed below.
Article such as baseball bats and playing boards, among other such articles/products
Hardware digital products such as joysticks used in video games
Software innovations in digital games
Technical processes of enabling games, such as technical processes that enable real time multiplayer games
While a utility patent protects functional aspects of a product, a design patent on the other hand protects ornamental design (aesthetics) of a functional item. Some of the aspects of a game that can be protected under design patent law are listed below.
Appearance of a playing board
Appearance of articles used in a game, such as toy bikes
Icons (computer icons) present in the game
Existing laws may not enable original game developers and promoters to prevent competitors from adopting the rules of the original game. However, a carefully designed intellectual property protection strategy can protect various aspects of a gaming business as discussed above. Such a strategy can dilute the appeal of a counterfeit game or an inspired game to gamers, thereby substantially limiting their success and giving original game developers and promoters a competitive edge in the market.
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Claims of a patent define the scope of protection conferred by the patent. Hence, patent claims are worded carefully with an objective to make it harder for those attempting to work around the claims. While patent holders dread a situation where competitors make minor changes to a patent protected product/process to evade patent infringement, competitors on the other hand dread a situation where changes made to a patented product/process are not sufficient to evade patent infringement. Insight into how patent infringement is determined can go a long way in addressing concerns of patent holders and those attempting to work around existing patents.
Patent infringement analysis is usually conducted in two stages, namely, literal infringement analysis and non literal infringement analysis (infringement under the doctrine of equivalents). In the first stage of analysis, a claim and the alleged infringing product or process are analyzed to determine whether all the elements of the claim are present in the alleged product/process when the scope of the claim is construed by the literal language of the claim. If the alleged product/process includes all the elements of the claim when the scope of the claim is construed by the literal language of the claim, the claim is said to be literally infringed by the alleged product/process.
Patent infringement analysis proceeds to the second stage if literal infringement is not established. In the second stage, the scope of protection conferred by the claim is extended beyond the literal language of the claim. Several countries including US, UK and India apply various principles which extend the scope of protection conferred by a patent claim beyond the literal language of the claim while analyzing non literal infringement. Courts in the US have dealt extensively with situations relating to non literal infringement. The courts in India on the other hand have had relatively fewer occasions to deal with situations relating to non literal infringement.
On occasions the Indian courts have had to deal with situations relating to non literal infringement, the courts have favored purposive construction of claims, thereby extending the scope of claims beyond the literal language of the claims. The Delhi High Court in Raj Parkash Vs. Mangat Ram Chowdhry held:
“It is the pith and marrow of the invention claimed that has to be looked into and not get bogged down or involved in the detailed specifications and claims made by the parties who claim to be patentee or alleged violators.”
Purposive construction of claims was also suggested by the Madras High Court in TVS Motor Company Limited Vs. Bajaj Auto Limited. The court in the instant case held:
“In construing an allegation of infringement, what is to be seen is whether the alleged infringement has taken the substance of the invention ignoring the fact as to omission of certain parts or addition of certain parts.”
The above cited judgments suggest that the “pith and marrow” or the “substance” of the invention has to be looked into in defining the scope of a claimed invention. The Madras High Court also refers to House of Lords decision in Catnic Components Limited Vs. Hill and Smith Limited, which favors purposive construction of claims.
In light of the foregoing discussion, it is evident that the Indian courts do not limit the scope of protection conferred by a claim to the literal language of the claim. The instant position of the courts is in favor of patent holders who can be optimistic about enforcing their patent rights against those attempting to work around their patents by making modifications, which may be within the “substance” of the claim. Nonetheless, claims should be carefully crafted to capture the “substance” or “crux” of the invention, and should avoid including non-essential elements in the claim. On the other hand, those attempting to work around a patent claim should not rely on minor modification to a claimed product/process, which may be inferred to be not going beyond the “substance” of the target claim.
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