The Problem with Patents

The Problem with Patents

copyright lawyer

The Problem with Patents

1000 648 David Hoppe

Markus “Notch” Persson, owner of Swedish game developer Mojang, has attracted a lot of attention for his lo-fi but relentlessly addictive game Minecraft. Most has probably been welcome: glowing reviews from respected gaming outlets like Eurogamer, Giant Bomb, IGN, and, er, Conan O’Brien, “game of the decade” plaudits from legendary developer Peter Molyneux (Populous, Syndicate, Theme Park, and Dungeon Keeper, among many others), and, oh yes, more than 20 million registered users. Some recent attention, however, was probably received a bit less warmly: Mojang has been sued for patent infringement by Luxembourg-based tech company (and, some would say, patent troll) Uniloc.

The lawsuit accuses Mojang of infringing on its patent, No. 6,857,067. In brief, here’s what’s claimed in the patent: Before allowing a user to access an application, the application checks a client-side “key” against a “lock” stored on a central server. Mojang allegedly infringed the patent “by or through making, using, offering for sale, selling and/or importing Android based applications for use on cellular phones and/or tablet devices that require communication with a
server to perform a license check to prevent the unauthorized use of said application, including,
but not limited to, Mindcraft [sic].”

Uniloc currently has 33 infringement cases filed in the patent-plaintiff-friendly Eastern District of Texas. As well as the Mojang suit, on the same day it filed virtually identical suits against nine other companies, including Electronic Arts and Square Enix, and in the past few years it has filed similar suits, both in Texas and in other plaintiff-friendly jurisdictions, against the likes of Microsoft, Texas Instruments, Sony, Symantec, Adobe, Activision Blizzard, Foxit, and others.

If you think that Uniloc’s ‘067 patent sounds broad, that’s because it is. And that illustrates a major problem with the intersection of patent law and gaming technology. Patent law stems from Article 1, Section 8 of the US Constitution, empowering Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” It’s substantially embodied in 35 U.S.C. s. 100 and its following sections, which provide generally that inventions may be patented so long as they are novel and non-obvious. A substantial body of caselaw elaborates what that means. And, for the most part, for most types of inventions, the system works well. But many in the games industry fear that the system may be doing more harm than good.

The theoretical underpinning for patents is that they are meant to promote research and development by giving inventors a monopoly on their inventions for a period of time (in the US, 20 years) after their invention, thus providing a financial incentive for being first to the post. In the context of software and games technology, however, it’s argued that patents actually stifle creativity rather than promoting it. Often, these patents are for technologies or processes that seem to violate the rule that a patentable invention be non-obvious. For example, in January 2012, a company called Paqits, LLC, which does not appear to have any products of its own, or, for that matter, its own website, sued Activision Blizzard, alleging that a function of the game company’s website that allowed users to communicate with each other violated one of Paqits’ patents. In 2008, an Illinois man sued Nintendo, alleging that the Nintendo DS infringed a 2005 patent he held for touch screen technology. A year earlier, a company called Fenner Investments targeted Nintendo, along with Sony and Microsoft, for infringing Fenner’s patent for “a low-voltage joystick interface.”

The current state of the law for these types of patents is unsettled, and neither the US Court of Appeal for the Federal Circuit – the court with appellate jurisdiction over decisions of the US Patent and Trademark Office – nor the Supreme Court has ruled definitely what, if any, specific rules should be in place to handle patents that affect the rapidly-evolving gaming industry. Congress could, of course step in: It’s created specific rules for, for example, biotechnological creations and inventions “made, used, or sold in outer space.” It hasn’t yet done so here. Until either Congress or the courts step in, the situation is likely to go on pleasing no one, other than perhaps those patent trolls and their lawyers.

For now, Persson promises to fight the Uniloc suit, vowing “to throw piles of money at making sure [Uniloc] don’t get a cent.” Uniloc may have the last laugh, though: Remember that Microsoft lawsuit? Uniloc won.


David Hoppe

All stories by: David Hoppe

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