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.