Patent protection may be available for numerous aspects of gaming and gambling technology. However, European patent law provides relatively strict requirements for inventions in this area. Thus, the patentability of gaming technologies must be evaluated on a case-by-case basis.
Over the past decade, the gaming and gambling market has grown rapidly. In particular, online services and gaming applications for mobile devices appeal to a new, globally expanding customer group. This led to a boom in the industry, spurring the development of new, attractive gaming and gambling possibilities. At the same time, with more and more competitors entering the scene, providers might want to consider patent protection for their technology in order to keep competition at bay.
Patent protection is conceivable for various aspects of technology used for gaming and gambling, such as system architecture, game features, user interfaces or organizational functions. The European Patent Register contains, inter alia, patents for a game system providing multiplayer online role-playing, for a computer program for processing bets or games of chance, for a system permitting the proposal and execution of entertainment games or wagers, and for an authentication method for online gaming. So does this mean that online gaming and gambling providers can safely bet their money on patent protection for their technology – or even that they must seek patent protection in order to stay in the game?
Considering the expansion of the online and mobile market, it does not come as a surprise that most patent applications in the area of gaming and gambling technology concern computer programs. But beware: patents in this area are not as easily granted as the above-mentioned examples might suggest. Applications including technical aspects are generally patentable if they are new and involve an inventive step. However, European patent law presents several pitfalls for patent applications involving gaming and gambling technology: firstly, plans, rules and methods for games are per se excluded from patentability under Art. 52 (2) (c) European Patent Convention (“EPC”). Secondly, patent protection is not available for computer programs “as such”. Nevertheless, inventions including computer programs which have a “technical character” may be patented. According to the European Patent Office (EPO), this is the case if the computer program is capable of bringing about a further technical effect going beyond the usual physical interactions between the program and the computer on which it is run. This “further technical effect” may e.g. relate to the control of an industrial process, to the internal functioning of the computer itself, or to its interfaces in order to influence the efficiency or security of a process.
Under applicable case law, computer programs are considered patentable if they address the solution of a certain technical problem using technical means. Even computer programs that address technical as well as non-technical problems (“mixed” inventions) are generally patentable. However, the assessment of the necessary “inventive step” is limited to those aspects of a computer program that relate to or at least influence the solution of a technical problem using technical means (cf. EPO, September 26, 2002, T 641/00 – Two Identities/ COMVIK; BGH, October 26, 2010 – X ZR 47/07 – Display of Topographic Information).
With respect to computer implemented gaming and gambling technology, this means that many inventions manage to overcome the first obstacle of general patentability but are denied protection for lack of an inventive step because their innovative features do not address specific technical problems (e.g. BPatG, April 12, 2004, 2 Ni 32/11 (EU) – Contest Evaluation; EPO, November 27, 2007, T 859/2007 – Casino Game). The EPO decision Video Game/KONAMI (June 2, 2006, T 0928/03) illustrates the problem: the applicant sought a patent for a video game in which soccer players are highlighted by a ring-shaped guide mark in order to improve their on-screen visibility. This combination of mental (user interaction with the video game) and technical (enhanced visibility) tasks was sufficient for general patentability under Art. 52 (2) (c) EPC. However, patent protection was denied for lack of an inventive step because the ring-shape of the guide mark was considered a non-technical, aesthetic feature, and the mere enlargement of the guide mark as such was considered obvious to the programmer of a video game.
In line with the foregoing, the number of patent applications for gaming and gambling technology that have been denied protection or that have been withdrawn by the applicant by far exceeds the number of patents that have been granted in the area. It is therefore essential for prospective applicants to evaluate their inventions on a case-by-case basis in light of the rules outlined above. At the same time, patentability of computer programs is an evolving area of law, and many open questions remain. In summary, patent protection for gaming and gambling technology is not a game of chance – but it is not a safe bet either.