How to protect innovations in Video Games: Patents regarding VR/AR, AI, and Quantum Computing technologies applied to Video Games in Europe

Get ready, gamers and video game designers, because we are celebrating World Day of Video Games on August 29th and we want to highlight the importance of protecting the innovations that are revolutionizing this exciting industry.

The video game industry in Europe has experienced unprecedented growth, establishing itself as a dominant force in the global entertainment market.

In 2022, approximately 24.5 billion euros were spent on video games, and over 100,000 people worked in this sector across ten EU markets, reflecting the accelerated expansion of this industry. This growth not only underscores the popularity of traditional video games but also the rise of emerging technologies such as virtual and augmented reality (VR/AR), artificial intelligence (AI), and quantum computing, which are transforming the user experience.

As the video game market expands and becomes a key pillar of the global digital economy, the protection of intellectual property (IP), particularly patents, becomes crucial.

Protecting these innovations is essential not only to maintain a competitive advantage but also to ensure the future of technological development in this dynamic sector.

This year, 2024, the issue of patents in the video game industry captured attention when new patent applications related to the Nintendo Switch were revealed. For example, some of these can be consulted at the following links:

• Game program, game system, and game processing method
• Information processing system, information processing program, information processing method, and information processing device

The second document is an international (PCT) application that, in addition to having equivalents in Japan and China, has entered the United States.

These patents, which include technical innovations to improve gameplay and user interaction, underscore Nintendo’s ongoing commitment to protecting its technological developments. Among the highlighted patents are advances in motion detection and touch interaction, demonstrating how the company continues to explore and patent new ways to enrich the user experience. This example not only emphasizes the importance of patents in protecting IP in the video game industry but also illustrates how leading video game companies like Nintendo strategically use their patents to stay ahead in a highly competitive market.

In Europe, the legal framework for patent protection in the field of video games is complex and constantly evolving. This article explores in detail how video game patents can be protected in Europe, the associated challenges, and best practices for developers and companies in the sector.

The Importance of Patents in the Video Game Industry

Patents play a fundamental role in the video game industry by protecting the innovative inventions and technologies that drive the development of new games.

These inventions can range from advanced graphics engines and artificial intelligence algorithms to specific methods of user interaction developed with quantum computing and AI or virtual and augmented reality technologies. By securing a patent, developers and companies can prevent competitors from using their inventions without permission, giving them a significant competitive advantage.

In Europe, patents can protect technical inventions in the field of video games, provided they meet certain legal requirements. However, granting patents in this sector is not without challenges, as the nature of video games often involves elements that are not patentable, such as game rules or character design.

Challenges in the Patentability of Video Games

Like any invention, for a video game-related idea or product to be patentable in Europe, it must meet requirements that include:

• Novelty: The invention must be new, meaning it must not have been publicly disclosed before the patent application filing date.
• Inventive Step: The invention must involve an inventive step, meaning it should not be obvious to an expert in the field.
• Industrial Applicability: The invention must be capable of industrial application, meaning it must be possible to manufacture or use it in any type of industry.
• Technical Character: The invention must have a technical character, meaning it must solve a technical problem using technical means.

In the context of video games, this translates to inventions involving data processing methods, gameplay improvements through advanced technologies, or new forms of user interaction via innovative input devices potentially being patentable.

Despite patents offering a powerful tool for protecting innovations, obtaining a patent for a video game in Europe can be complex, as they must also meet specific requirements established by the European Patent Convention (EPC). Some of the challenges include:

• Exclusion of Game Rules: According to the EPC, game rules and methods for playing games are not considered technical inventions and, therefore, are not patentable. This means elements like game mechanics, rules, or scoring systems generally cannot be protected through patents. See 3.5.2 Schemes, rules and methods for playing games (epo.org)
• Computer Programs: In Europe, computer programs in their code form are not patentable by themselves. However, if the program produces an additional technical effect, such as improving device performance or solving a specific technical problem, it may be eligible for a patent. In the case of video games, this could apply to algorithms that enhance user experience or enable new forms of interaction. See 3.6 Programs for computers (epo.org)
• Evidence of Inventive Step: One of the main challenges in obtaining a patent for a video game is demonstrating the patentability requirement of inventive step. Since the video game industry advances rapidly, what may be considered innovative today could become obsolete in a short period. This complicates the assessment of the obviousness and novelty of the invention.

In summary, in the context of the patentability of video games under European regulations, schemes, rules, and methods for playing games, including video games, are excluded from patentability according to the European Patent Convention (EPC) if claimed as such.

This means that game rules, whether for traditional games like cards or boards, or modern games for gaming machines or to be implemented as video games, are excluded from patentability due to their abstract and mental nature, and so you must convince the EPO that the invention has a sufficient “technical effect” for it to be patentable.

When these rules are implemented using specific technical means, such as using a computer to calculate a pseudorandom sequence or mechanical devices, the invention acquires a technical character that may overcome the patentability exclusion.

Additionally, although computer programs themselves are not patentable, they may be subject to patent if they produce an “additional technical effect” that goes beyond mere interaction between the program and the hardware. In the context of video games, this means that innovative technologies that, for example, improve graphical performance or user experience through specific technical methods, could meet the criteria for patent grant in Europe.

This distinction is crucial for video game developers to identify which aspects of their innovations are eligible for protection under EPO guidelines. Ultimately, in the case of video games, the combination of technical features with game elements can result in a patentable invention, as long as the inventive step is based on additional technical effects that go beyond the game’s own rules.

Our patent team fully understands the importance of differentiating between the abstract rules of a game and its technical implementation, a crucial aspect when assessing the patentability of an innovation in the field of video games in Europe. This specialized knowledge, grounded in deep sector experience, allows us to guide our clients through the complex patent application processes, maximizing their chances of success and protecting their most valuable assets in a highly competitive market.

Strategies to Protect IP in the Video Game Industry

Given the aforementioned challenges, video game companies and developers in Europe must adopt a comprehensive intellectual property protection strategy. Some recommendations include:

• Patent and Copyright: While patents can protect technical inventions, copyright is better suited to protect creative aspects such as graphics, music, and the game’s narrative. A combination of both can offer more complete protection.
• Utility Models: In some European countries, such as Spain and Germany, it is possible to register utility models, which are subject to less stringent inventiveness requirements.
• Trademarks: Registered trademarks can protect the game’s name, logo, and other distinctive elements that identify it in the market. This is crucial to prevent competitors from launching products that may confuse consumers.
• Confidentiality Agreements: Before revealing technical details to external collaborators or during the development process, it is advisable to sign confidentiality agreements to protect sensitive information.

The Future of Patents in the Video Game Industry in Europe

The video game industry continues to evolve rapidly, driven by technological advances such as artificial intelligence, virtual reality, and cloud computing. These developments present new opportunities but also challenges in terms of IP protection.

The recent implementation of the Unitary Patent and the Unified Patent Court in Europe, which aims to simplify the process of obtaining and enforcing patents across multiple EU countries, could facilitate the protection of video game innovations. However, it could also lead to an increase in legal disputes, as patent holders will be able to assert their rights more effectively across multiple jurisdictions.

An analysis of patents granted in the video game industry in Europe reveals an increasingly broad range of protected innovations. Some of these include:

• Graphics Engines: Companies like Epic Games have filed patent applications related to advanced technologies for graphics engines, which are essential for the performance and visual quality of modern video games.
• Virtual and Augmented Reality: The technology that enables interaction in VR/AR environments has been the subject of numerous patent applications. For example, devices that track player movement and integrate it into the game in real-time have been protected as patents.
• Methods of Interaction with the User: Innovations in game controls, such as motion-sensor controllers to detect and control user actions during gameplay, represent a clear example of how a technical invention can be protected. With the integration of artificial intelligence and quantum computing, these innovations can reach unprecedented levels of precision and customization, allowing for even more immersive and adaptive gaming experiences.

Conclusion

Our Patent team including engineers who are specialists in key areas of software, artificial intelligence, and telecommunications, is equipped to develop well-planned strategies that offer solid protection for the technical innovations driving the video game industry.

Aware of the significant challenges this environment presents, we help our clients stay competitive by combining industrial property tools, such as patents, with trademarks and copyrights.

H&A (H&A) has a large team of professionals to offer comprehensive advice to all stakeholders involved in the design, creation, implementation and production of video games. Our focus is on video game designers in all their aspects, producers and production coordinators, writers and screenwriters, composers and audio designers, as well as character and graphic element designers.

Additionally, we provide specialized support to programmers, publishers, and anyone involved in the production of the video game, whether as an executor, creator, or rights holder. We also understand the needs of video game players (gamers), both at an amateur and professional level, and are prepared to help them protect their interests in this dynamic sector. Our team is here to ensure that every aspect of video game production and use is properly protected under current regulations, thus ensuring successful and sustainable development in this constantly evolving industry.