Patents, Poobahs, and Peasants

Note written December 27th, 1997:
I now hold a patent on interactive storytelling technology. If you can’t beat em…

It seems that a number of big entertainment software publishers have begun to patent game technologies. So far, there are only a few patents pending, but we’re just seeing the beginning of a trend that will surely grow.

Why? First, as development costs have risen software publishers have begun to move development in-house where they can exercise tighter fiscal and editorial control. This has in turn required the creation of expensive in-house studios, with sound specialists, graphics artists, animators, producers and lots of programmers. Publishers naturally want to protect their substantial investment in such in-house studios and the technology they create.

Add to this the fact that big publishers already have a lawyer on staff and budget a significant amount of money for legal matters. A six-person development shop might balk at the expense of patenting its technology, but to a big publisher, this is just part of the cost of doing business. Moreover, there are economies of scale involved in patenting a company’s technology; once a company learns the basic procedures necessary to facilitate a patent application, it becomes cheaper to apply for more patents.

Thus, our industry has passed an important milestone in its history. We have become big enough and rich enough to start patenting everything we do. That’s good, right? Wrong! The patent process is peculiarly biased in a way that can only work to the detriment of the industry as a whole. Our industry is in a transitional phase during which patents perform an industry-wide disservice.

Some Background
Let me review some basics about patents. The intent of patent law is to encourage technological innovation by offering legal protection to the fruits of that innovation. Technology costs money to create, and no businessman will invest in research if the technology that his research yields can be sanpped up by his competitors. The government therefore offers the businessman a temporary monopoly on his technology.

The process, however, is cumbersome and expensive. The cheapest patent will cost about $5,000 to obtain. A complex patent or one in a highly competitive field can cost much more.

Why so expensive? Let’s think in terms of an imaginary intellectual territory, a land of ideas and technologies. A patent stakes out a portion of this terrain as your personal property. Nobody can trespass inside it without paying you rent. Your goal in applying for the patent is to stake out the largest chunk of territory the government will let you have. The more territory you control, the better the chance that somebody will roll a 12 and hit your Boardwalk with a hotel on it. Of course, everybody who’s obtained a patent before you has attempted to do the same, so you have to pay for a patent search, a survey of all pertinent patents to see what neighboring territory has already been staked out. The more complex or lucrative a field, the more existing plots there will be; it can be quite a thicket, and an expensive proposition to chart.

An important concept in patent law is "reduction to practice." You cannot patent an idea, only the actual method by which it is reduced to practice. For example, you could not patent the idea of collision detection; you would instead patent a particular scheme for collision detection.

Another important concept is "prior art." You cannot patent technology that everybody has been using for years. When you apply for a patent, you are required to notify the Patent Office of possible competing technologies that will help define prior art. One of the best ways to fight a patent is to show that it uses prior art and should never have been granted in the first place.

The Problem
This brings me to the reason why patents are bad for our industry. It used to be an industry of small-time operators, individual freelancers and tiny development groups. Most of the prior art was created by these tiny groups. But these tiny groups don’t have lawyers and are probably unaware of the patent efforts underway. They are legally voiceless. As far as the Patent Office is concerned, they don’t exist.

This skews the patent process, making it easy for big companies to grab up patents for work that they really did not originate. To extend the intellectual territory analogy, imagine the scruffy and legally naive Gold Rush 49ers being kicked off their claims by the slick corporations from back east whose lawyers know how to deal with the Claims Office.

These are not idle paranoid ravings; I understand that two patent applications have already been filed by entertainment software companies for technologies used in game software. Doubtless more are underway. If the trend continues, you can look forward to the day when you receive a certified letter from an attorney informing you that your latest product violates somebody’s patent, and demanding that you remove it from the market or pay a license fee.

Did you know that the basic technique for displaying a cursor over a bitmapped screen display has been patented? We all know how to handle the problem: blit the cursor bitmap with the background, exclusive-orring it with a mask. It’s a standard technique -- but it is patented and several hardware manufacturers have paid stiff license fees to the patent holder rather than fight the patent in court.

A Proposal
At this point, the more cynical among us might be tempted to shrug our shoulders and declare this to be yet another example of how the rich get richer, the powerful oppress the weak, good guys finish last, etc. etc. But such is not the case. We CAN do something about it.

Recall the role of prior art. The defendant in a patent-infringement case can prevail if he can demonstrate the existence of prior art. That’s where we come in.

Suppose, for example, that MoneyBags Software, Inc, has slapped Joe GameDesigner with a patent-infringement claim because they hold a patent on collision detection, and Joe’s software uses the same collision detection method.

Suppose that Bob Bystander developed the same collision detection method back in 1984, long before MoneyBags filed its patent application. If Bob could be made aware of Joe’s predicament, and came forward to document his prior work, then the tables would be turned. MoneyBags’ patent would be jeopardized or nullified. Realizing this, MoneyBags would back down.

Consider now that there are hundreds of us, and that collectively we have worked on thousands of projects over the last decade. Think of all the prior art we collectively know of. Now consider this: do you think that there is anybody anywhere in the industry who could invent a new games technology that has not in some way been anticipated by somebody with prior art? Not bloody likely, is it?

Now for another consideration: most of the relevant factors that affect patent cases are anticipatory in nature. Patent litigation is appallingly expensive. It is seldom worthwhile to pursue patent cases in court. Which means that the MoneyBags of this world might well be deterred from making overly ambitious patent applications if they can be made to realize that, first, there is a high probability that prior art exists for the claims they’d like to make; and second, that there are people out there willing to come forward with the patent-busting information.

For now, there is no pressing need for any overt action on our part. All the major publishers read the Journal and they are smart enough to figure out the implications of all this. If anybody ever does receive a patent-infringement demand letter, let them forward a copy to me. I’ll put out the word here in the Journal. Then, presumably, some good citizen will step forward ready to document prior art. If the strategy is executed properly, MoneyBags Software will be driven back snarling but defeated, with little more expense than that caused by a few letters flying between lawyers.

And if MoneyBags’ patent is fair and deserved, nobody will step forward to document prior art because none exists. Everybody wins (well, everybody except the lawyers, but they don’t count, do they?)

In a few years, I suspect that this problem will go away. Most technologies will be developed inside publisher studios, and the patent wars will be something of a fair fight between giants. For now, patent wars are about as one-sided as Europeans versus Native Americans; soon, we little guys will all be extinct and the problem will go away. Isn’t that sweet?