Gameplay Patents

I just finished reading Ernest Adams’ latest Gamasutra article, “Damn All Gameplay Patents!” It’s a well-intentioned piece that argues passionately against gameplay (as opposed to technology) patents, and contends that developers should not pursue them under any circumstances. I genuinely appreciate the sentiment that drove Ernest to write this article and agree with much of it, but I feel that some nuance is in order. Consider the following:

Patents are Somewhat Like Nuclear Weapons

In many ways, gameplay patents are like nuclear weapons. They’re expensive to develop, and they engender feelings of fear and mistrust. Put plainly, most of us would prefer to live in a world without them.

Unfortunately, like nuclear weapons, many gameplay patents already exist and are in the hands of many different owners. No matter how passionately we write, those owners will not simultaneously and universally revoke their patents tomorrow. Which means that some companies have nuclear weapons (I mean, patents)… and some don’t.

And just like in the real world, asking the countries without nuclear weapons to avoid developing them rarely works — even with economic perks or threats as incentive. More often than not, the countries that couldn’t afford to develop nukes anyway, or that don’t feel threatened, play along, while those that can/do proceed with development. Witness India, Pakistan, and North Korea.

Playing Chicken

Of course, Ernest anticipates this reaction. He quotes others who have argued: “patents are here to stay, and anyone who is serious about business had better make use of them before his competitors do” and retorts “this aggressive view is founded upon an assumption that patent legislation and US Patent and Trademark Office policy will not change. They may very well be wrong about that. Pressure is building on Congress for major patent reform.”

1) I’ve never heard of a good business strategy that was based on action Congress “might” take, especially when the timeline for that action was unknown, and especially when waiting meant putting yourself at risk.

2) Who says you need to “use” your patents?

Returning to my nuclear analogy, the “nice” thing about nukes (if one can say such a thing) is that, when everybody has them, nobody uses them. (Well, at least to date. We could still end up roasting in a global inferno.)

Companies with the financial resources necessary to secure gameplay patents can take the high ground, and do the right thing for their shareholders and employees, by getting patents but refusing to aggressively use them against other companies. (Nobody is forcing you to police your gameplay patents — but at least other companies will be less likely to come after you for violating their gameplay patents, given the possibility that you might retaliate.) But again, small developers really can’t afford to develop a large patent library, so this advice isn’t terribly useful to them.

Prisoner’s Dilemma

Ernest cites an article on patents by my friend David Sirlin, calling it “by far the best Gamasutra article on the subject.” But I think Ernest may have misinterpreted a key portion of the article. David wrote “There’s no hope of reform coming from companies adopting different behavior. Companies are merely playing the game with the broken rules presented to them. Reform must come from lawmakers who restructure the rules of the patent office.” This is a resounding echo of the point I’m trying to make — companies cannot be expected to behave in a manner that is inconsistent with the (broken) rules of the business environment in which they operate. It just doesn’t make sense for them.

This is a prisoner’s dilemma. And in a prisoner’s dilemma, it’s pretty clear what happens to the nice guy who acts “on principle” when he can’t necessarily trust everyone else in the group. You guessed it — he finishes last. I certainly won’t pretend the more likely outcome is satisfying. In a prisoner’s dilemma, everyone suffers somewhat — the ideal outcome can only be achieved by everyone playing nice, which rarely happens. There are too many companies in the game industry, and too many of those already have nukes.

Productive steps forward

Ernest wraps up with the following: “The only way a gameplay patent can make someone rich is by patent trolling — waiting for some party to innocently infringe on the patent and then suing them. And that’s not a way that I want to see this industry going. Our creativity is already under threat from enough directions without us terrorizing each other into mediocrity with the threat of lawsuits.”

I don’t want to see the industry go down this route, either. Gameplay patents almost certainly do hinder innovation (I won’t get into debate over whether or not they technically should exist. They do exist today, and that’s all there is to it.) So here’s what I’d suggest — and to be clear, this is just my personal opinion, aka I do not speak for Microsoft:

1) The game industry, led by organizations such as the ESA and IGDA, should band together and lobby for changes to patent law. That is something individual companies can do, as part of a whole, without undue risk to themselves.

2) The largest game companies should join together and announce they they will only litigate gameplay patents in a defensive manner; i.e. if someone sues them for gameplay patent infringement, they are free to fully retaliate, now or in the future. Otherwise, they will refrain from legal action. This would hopefully help reduce some of the dampening effects that current patents have on creativity.

Obviously, this plan isn’t perfect, but it’s a start, and it feels less hopelessly idealistic to me than a passionate cry for companies to refrain from getting patents altogether. Thoughts?