Patenting video games in Europe – the EPO’s Board of Appeal decide in favour of Nintendo (T1504/17)

Patenting video games in Europe – the EPO’s Board of Appeal decide in favour of Nintendo (T1504/17)

The video game industry is hugely competitive and finding success involves significant investment in innovation. Sony’s PlayStation 5 and Microsoft’s Xbox Series S and X have each been seven years in the making. As for the games themselves, blockbuster titles can now rival Hollywood films on budget and production time. You don’t even need a games console anymore, with the increasing popularity of smartphone gaming for titles such as Fortnite adding another layer of complexity to the market.
 
Obtaining patent protection for innovative features is one way device makers and video game developers can help protect their innovations and stay ahead of the competition. But exactly what can be patented in the video game space? This recent Nintendo case, in which the Board of Appeal of the European Patent Office (EPO) overturned a decision by the EPO’s Examining Division to refuse grant of a patent application, provides some useful guidance.
 

Video games and patents

In Europe, you must convince the EPO that an invention has a sufficient “technical effect” for it to be patentable. For example, you need to show the distinguishing features of the invention don’t fall within patentability exclusions such as “schemes, rules and methods for playing games” or “presentations of information”. You also need to show those distinguishing features to be inventive over the cited prior art. This can be tricky if there are various cited prior art documents which, on the face of it, look relevant to the distinguishing features of the invention. These issues were considered in detail in the case at hand.
 

The invention

Nintendo’s invention allows a selected virtual object to be moved between display areas on a screen when a movement sensor (which, unsurprisingly, looks very much like the Nintendo Wii Remote in the application drawings) is moved with sufficient acceleration or angular velocity.
 

The prior art

The closest prior art (CPA) did something similar. The difference was that the displayed object was moved between display areas by dragging it to a virtual “+” or “-“ button displayed on the screen rather than based on the acceleration or angular velocity of a movement sensor.
 
Several other prior art documents were also cited. These discussed things like a handheld controller with an acceleration sensor for game processing or gravity compensation, dragging a virtual object using a mouse (including “throwing” the object by dragging it at a certain speed) and controlling a virtual object based on the position of a pointer or an accumulated acceleration vector in a virtual world.
 

Technical effect

Based on the difference between the invention and the CPA, the Board deemed the invention was novel. The next question was therefore whether this difference produced the technical effect necessary in Europe to allow it to contribute to an inventive step.
 
The Board decided there was a technical effect because the distinguishing feature of “switching a target object from one area to another by determining when acceleration or angular velocity exceeds a threshold … implies the use of technical means (acceleration sensor/angular velocity sensor) to detect a particular movement and uses this to determine how an object is controlled in a game space”. This allowed moving the object to be done “more intuitively and thus with greater ease” and thus, starting from the CPA, solved the objective technical problem of “how to adapt the [CPA] so that display switching a targeted object is easier for the user”. The Board also stated that the distinguishing feature of the invention “is not a game aspect, such as a game rule, or specific to a particular role-playing game”, thus explicitly acknowledging that the EPO patentability exclusions relating to games did not apply here.
 
This is also consistent with the approach in the EPO Guidelines for Examination to presentations of information and user interfaces, which state that “features which specify a mechanism enabling user input, such as entering text, making a selection or submitting a command, are normally considered to make a technical contribution”. The mechanism of the invention in which the user moves a movement sensor with sufficient acceleration or angular velocity to cause a displayed object to be moved between display areas fits with this description.
 

Inventive Step

The Board concluded the invention was inventive because, starting from the CPA and looking to solve the objective technical problem of how to make display switching a targeted object easier for the user, the skilled person would not have arrived at the claimed features relating to detecting when acceleration or angular velocity of a movement sensor exceeds a threshold. This was because, in the Board’s view, the way the CPA switched displays for an object (hovering over a predefined button using “+” or “-“buttons) was “fundamentally independent” of how the object is moved. The skilled person would therefore not have considered simplifying the operation of the CPA in the way claimed, where it is the acceleration or angular velocity of the movement itself which is important. This was despite the wide variety of prior art cited and the known “common place” use of variable values and thresholds relating to movement sensors in the field of user interfaces.
 
In other words, the motivation of the skilled person to adapt the CPA was key. Again, this is consistent with the approach in the EPO Guidelines for Examination in which the test for inventive step is whether the skilled person would (not could, but would) have arrived at the invention from the teachings of the prior art.
 

Conclusion

Patents for innovative features in video games are one way to help device makers and video game developers reap returns on investment and stay ahead of the competition. However, to have success at the EPO, it is important that the distinguishing features of the claims have a technical effect over the prior art (e.g. so they don’t fall into the “schemes, rules and methods for playing games” or “presentations of information” exclusions) and that inventive step can be shown based on the motivation of the skilled person in light of the prior art teachings. It is encouraging to see the Board of Appeal applying these principles in this case to arrive at a positive decision for the applicant.
 
If you would like to know more, please contact Arun Roy or another member of the Kilburn & Strode patents team.

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