Patent absurdity: Trying to protect its rule set lands small role-playing game publisher in hot water

patent_trollLadies and gentlemen, I give you the tabletop role-playing game community’s current tempestuous teapot.

Recently, a small role-playing game publisher held an IRC interview about the new multi-genre tabletop role-playing game it had just published. The game and the company both seem to share the name Universal Horizons. Inspired by the publisher/writers’ disgust at the change from D&D 3rd edition to 4th edition, this game includes multiple campaign worlds, or “genres”—an urban fantasy world, a science-fiction fighting-off-bug-like-aliens world, and so on. These “genres” use the same character statistics but may have different skill bonuses from genre to genre.

The problem comes late in the chat, where the publisher said that, in order to protect its system’s rules, it had taken out a patent on them.

[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!

[20:57] <+AJofUniversalHorizons> IN essence, it’s a process patent for paper and online applications for transferring virtual entities from one genre to another.

In a Facebook update, the publisher attempted to clarify that the patent only applied to its particular rule system. It had sought the advice of a lawyer on how to protect its rules from being copied, and the lawyer explained “patent law protects better than copyright law.” And the publisher doesn’t plan to go about suing anyone else, unless they copy the exact, specific process described within its rules.

But it was too late. The red cape had already been waved in front of the bull, and now it’s time for everyone to charge off half-cocked. Blog posts with headlines like “Patent Trolling Comes to RPGs” are starting to pop up. Google “Universal Horizons patent” and you’ll find one blog after another complaining about it. The thing is, I don’t think that “patent trolling” is what’s actually going on.

I’m not a lawyer, but I’ll try to make sense of this with a little research.

Game Mechanics: Copyright vs. Patent

In some ways it’s hard to blame people for getting upset. Patent trolling is an endemic problem of our time. When you see companies that exist for no purpose but to litigate popping up to say that they own the patents to the concept of the shopping cart, mobile questionnaires, or some other idea upon which a large chunk of the modern Internet is based, it’s easy to lose faith in the entire notion of patenting anything. We even had another Supreme Court decision on the validity of abstract patents just the other day. But abuses aside, patents do exist for a reason, and that reason is to protect processes. Including processes for playing games.

Let’s go right to the horse’s mouth and find out how copyright relates to games. The U.S. Copyright Office at copyright.gov has this to say, with boldface emphasis added by me:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

This is, at least in part, why you see so many different variations of Monopoly available for sale, including ones not published by Parker Brothers: as long as they don’t use copyrighted artwork or text, there’s nothing to prevent their manufacturer from telling people to play this game in the same way as Parker Brothers tells people to play its Monopoly game.

So if copyright law doesn’t protect game mechanics, what does? Why, patents! Whether it’s role-playing, board, or video games, the principle is the same. An IP litigator going by “Ben Hur” writes on gamesindustry.biz, again with boldface emphasis added by me:

Historically, protection for video games has been obtained through copyrights and patents. Copyright protection can extend to the expressive, non-functional elements of a game, such as audiovisual display and the underlying source code, but not the ideas behind the game itself. Patent protection extends to the functional aspects of games, such as gameplay mechanics.

So, if you want to protect against someone ripping your rule set off and coming out with an identical game that just uses different words to describe the identical game mechanic, you have to patent it. Going back to the Monopoly example, the thing that lets people make Monopoly knock-offs with impunity is that the patent on Monopoly’s rules has long since expired.

Of Patents and Role-Playing Games

An awful lot of potentially unexpected mechanics have been patented in video games, in fact. The odd thing is, apparently this isn’t as common in tabletop role-playing games. Even the notoriously litigious Palladium Books, who doesn’t even allow people to post conversions from other people’s RPG rule sets to its own for fear the owners of the other rule sets might sue it, doesn’t seem to have done much in that regard. (At least, not that I can find with a quick Google. Though that doesn’t mean they haven’t and just not said anything about it.)

Which isn’t to say there aren’t any RPG patents; just that there hasn’t been a lot of publicity about them. A quick search turns up filings like this one for “improvisational interaction in role playing events,” or this one about a “System and method for playing a role-playing game,” or this one for a “Method and system for managing role playing game information” going all the way back to 1998. Of course, some of these are more related to computer than tabletop RPGs, but even so, they still relate to “role-playing games.”

So why are people getting upset now?

Part of it is, as I noted, how much more common patent trolling has become in recent years, and how common it is for companies to sue over anything that looks the slightest bit like something they have a patent on. But more of it is probably due to a misunderstanding about the nature of this particular patent, which Universal Horizons didn’t help much by referring to it as covering their method of moving characters from one “genre” to another.

When taken out of context (as most gaming blogs seem to want to do), it looks like this patent is trying to cover the general idea of moving characters from one genre to another, as you might do in  GURPS, HERO, FUDGE, or any other generic RPG rule set. For example, the article where I found out about this says:

Right now the US Patent and Trademark Office is considering giving a small publisher the patent protected rights to convert entities (PCs, Monsters, NPCs, stats, weapons, etc) from one genre to another.

For example, moving your Beyond the Supernatural character to Rifts would become a patent protected right. Exploring universes in Monte Cook’s The Strange might also come under the patent. The list goes on.

And, unfortunately, patents are written in such completely impenetrable makes-your-eyes-glaze-over legal-speak that it’s quite possible to get that impression from reading Universal Horizons’s patent application itself. (Indeed, it’s entirely possible their application was written in a manner that is more broad than the company actually intends from what it has said elsewhere. But then, if that’s the case, it will more than likely be rejected.)

But if you read the entire IRC chat, it becomes clear that the game company is using “genre” as its system-specific term to refer to particular campaign worlds within its own rule setting. (You know, like how every game system calls the game-runner something different: dungeonmaster, gamemaster, referee, storyteller, etc.)

[19:03] <+AJofUniversalHorizons> Bloodtooth Genre is a modern world circa 1980s fraught with conspiracies. The presence of Lycans, Yeti, vampires, zombies, and other oddities are known, bot no government will confirm of verify their existence.

[19:06] <+AJofUniversalHorizons> The Araqunidia Genre is a world in turmoil. Alien ‘bug’ like creatures invaded a Terran world to make it their home. Only after a scorched-earth campaign with nuclear weapons did they level the battle field. Now both are fighting for control some 18 solrevs later…

And so on.

So, in effect, and as the company said in its Facebook update cited above, the patent is meant to cover only moving characters from one campaign setting to another within the Universal Horizons rule system, using the rules specific to the Universal Horizons game. Not one “genre” to another in general. If you’re not using the specific character conversion methods covered by Universal Horizons, meant to work within its specific system of rules for creating characters and resolving those characters’ skill checks, you should be fine.

When you think about it, it’s ridiculous to think anyone would be foolish enough to try to patent multi-genre gaming in general for the purpose of patent trolling. Most “troll” patents were actually taken out in the ‘90s or ‘00s, and subsequently changed hands to companies in the business of litigating. You can’t troll with a new patent. The prior art going back years and years is blatantly obvious—GURPS, HERO, and FUDGE, to name just a few—and such a patent would be instantly invalidated upon its first attempted use (if it even made it all the way through the patent approval process to begin with).

But in patenting its own unique game mechanics, the company might have a better chance—at least, legally speaking.

Tempest, Meet Teapot

The problem is that, as I’ve already explained (and the community reaction has clearly demonstrated), taking out a patent looks bad—especially since few tabletop role-playing game companies have apparently bothered to do it before. (As far as I’m aware, anyway. It could very well be that some major RPG companies do hold patents on their rules and just haven’t troubled to make that publicly known.)

Generally speaking, new rule sets are easy enough to come up with, and enough existing sets have been licensed for free use, that it seems unlikely anyone would care enough about any one particular system to try to rip it off. And is having that added security really worth the reaction you’re going to get in this patent-crazy world? From a community-relations point of view, the company might have been better off just sticking with copyright and trademark.

That being said, I don’t think there’s anything nefarious in this patent application. Just an example of a company taking sound legal advice without pausing to consider how unsound it would be from a PR point of view. This is a tempest in a teapot, and I advise the folks concerned over it just to let it go. Universal Horizons isn’t trying to pull what you think it is.

7 Comments on Patent absurdity: Trying to protect its rule set lands small role-playing game publisher in hot water

  1. Chris, I think everyone understands that Universal Horizons are just trying to protect their own hard work. The problem is that they’re going about it in a really clumsy manner — every step of the way. From trying to get a patent in the first place, to bragging about it as if it’s a selling point of their game; from making very vague claims about their intent in the future, to deleting negative comments on their facebook page.

    One problem with your analysis, Chris, is that you’re viewing this as a patent only about their own process within their game. In other words, reading your blog one might get the impression that the only way to infringe on their patent would be for a third party to make a genre-to-genre conversion system for Universal Horizons and then try to publish that.

    “So, in effect, and as the company said in its Facebook update cited above, the patent is meant to cover only moving characters from one Universal Horizons campaign setting to another, using the rules specific to the Universal Horizons setting.”

    Quite frankly, that is a ridiculously naive view and I suspect that the Universal Horizons developers did not spent their hard-earned money on a patent lawyer JUST to prevent such a circumstance.

    It’s clear to me that if I were to produce a genre-to-genre transfer process for The Queen’s Cavaliers that was based entirely on Universal Horizons methods, but allowing you to move from one TQC genre/world/setting to another TQC genre/world/setting, that would be infringement on the Universal Horizons patent even though it isn’t implemented for UH.

    You argue otherwise, that their patent would only kick in if I did it just within the Universal Horizons system. As I wrote before, this is a naive and silly view, and renders your analysis rather self-discrediting.

  2. If you produce a genre-to-genre transfer process based on Universal Horizon’s methods, you’re doing exactly the thing the patent is meant to prevent: making use of Universal Horizons’s unique game mechanic without permission. Which is the whole point of the patent. You can’t use the rules they made up. You have to go make up your own rules, or use rules like FUDGE where a license is granted for other people to use them.

    I’ve revised my post to make that a little clearer.

  3. The reason I think people are upset is that there’s basically no money in the RPG industry – it’s small and there’s hardly any money to be made from these games. Most RPG developers aren’t in a position to defend patent threats and can’t afford to take the risk of infringement – if patenting rules becomes A Thing, that’s going to drive a lot of indie devs out of the industry. Ostracism and public opinion’s about the only cheap weapon on the table.

  4. The problem lies with the way the patent is written. The patent as currently published has absolutely no limitations upon it to restrict it to within the confines of Universal Horizon’s products. In fact, Universal Horizon’s name is only referenced within the patent description proper ONCE, and it is stated that the process MAY use Universal Horizon’s player manual.

    So, it’s not the act getting the patent, but how the patent is written and the dangerous potential it can have. It’s written in a way that’s common with software patents.

  5. But abuses aside, patents do exist for a reason, and that reason is to protect processes. Including processes for playing games.

    One: I can’t set aside the abuses when abuses is all I ever hear about when it comes to patents. Even Mr. Watt, the inventor of the steam engine, used the patent system — which was a new thing back then — to stifle some very needed improvements to his invention for twenty long years. Care to explain me how exactly the world benefited from that?

    And two: speaking of inventions, that is what patents were supposed to protect initially. Not ways to do something, which is absurd — what, if I see you sawing wood in a particularly effective way I’m forbidden from trying out the same motions? — but specific ways to put together a machine. Such as, you know, a steam engine. Which was at least something palpable and genuinely useful to humankind. Unlike, you know, a game.

    Part of it is, as I noted, how much more common patent trolling has become in recent years, and how common it is for companies to sue over anything that looks the slightest bit like something they have a patent on.

    No, that’s the entire problem, because you see, patent trolls sue victims who can’t afford to defend themselves in court at all, so it doesn’t matter in the least whether the troll’s claim has any weight. You’re forced to settle automatically if you want to stay in business. The patent itself only needs to exists at all for the lawsuit to be accepted in court. Which brings me to…

    (Indeed, it’s entirely possible their application was written in a manner that is more broad than the company actually intends from what it has said elsewhere. But then, if that’s the case, it will more than likely be rejected.)

    Is it? By the same patent office that patented swinging sideways on a rope swing? Or, to talk gaming patents, tapping a card (in Magic: the Gathering) by turning it sideways? Does that sound patentable to you? Because it is patented — has been for many years.

    You see, patents aren’t issued for free. They cost a ton of money to register… which means there’s an incentive to rubber-stamp them. Yeah, yeah, people usually blame overworked, under-trained clerks, but seriously, follow the little green papers…

    So no, I don’t think the problem is overblown. Taking out a patent, any patent, is an act of aggression, and an insult to all the people who probably have thought about your “invention” themselves but didn’t run to the patent office with it. Presumably because they were busy making it better — and other inventions along with their own.

    Luckily, patents expire. But how much work was wasted removing GIF support from applications prior to the Unisys patent expiring, that could have went into improving the format before it was made into a toy by the march of progress?

  6. Chris, I do not think you understand the issue or the IP law/implications of this.

    First, let us begin with why you cannot copyright the game mechanics. The reason is you cannot copyright a set of instructions! This is why you cannot copyright recipes. They are just a set of instructions. You can copyright the method of expression. That is, if people copy your words it is in violation of copyright. You cannot copyright an idea or a set of instructions. That is what a game is.

    You also cannot patent a set of instructions. A method patent is one that applies to a specific way of producing a product. It doesn’t apply to a method of doing anything. A method patent is not applicable to game rules.

    While you defend UH because you believe it only applies to their specific game rules, it does not. The patent is written vague. Why? Because of how courts interpret things. A method patent is only infringed if the specific method is followed and done by one person. Hence, if someone altered anything in a method patent, then it was not violated. However, by making it vague, companies try to patent an idea. Hence, anytime someone does the same thing then someone can claim a patent violation. This is why there are patent trolls. They come up with an idea, write it up vague and then get it through the patent office. In turn, they can use the courts to extort money from people. So whether or not UH intends it to apply to just their system, it actually applies to the whole concept.

    Finally, it is not sound legal advice. Think about it. There are major game companies for 40 years that pretty much have never patented anything, outside of a few rare exceptions. These companies have teams of lawyers. TSR used to sue people over anything and everything, yet they were not filing patents. Isn’t it more likely that the patent lawyer wants money and therefore advised them to patent it rather than not make money?

    What does protect games? IP law. I know people often think of it in terms of copyright and patents, but court cases have carved out a concept of intellectual property that covers a lot. That is how you protect you game.

  7. @Jamie, what Intellectual Property (IP) law does not involve copyright or patent? Trade Marks, including trade dress?

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