Patenting Board Games 101
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
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Posted: Dec 22, 2011 @ 12:22 pm
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As we rapidly move forward toward Christmas the holiday season is more and more on my mind. As I started contemplating what to write my mind wandered to a topic I have wanted to write about for a while, and which seems particularly appropriate at this time of year. Board games. I have so many good memories of receiving various board games as gifts over the years, particularly at Christmas. Santa Claus always knew that I enjoyed playing board games, so every year there was at least one under the tree.
It might come as a surprise to some that board games are patentable, but they are indeed. Processes have always been patentable and at its core a board game is just a method of playing by a predetermined set of rules. The goal is to crown a winner and sequential and repeatable steps are engaged by two or more players. Board games are definitely patentable, provided of course they are unique. I won’t spend time discussing whether a board game is unique, but rather will assume that to be the case. It is, however, always wise to first do some kind of a patent search to verify that you are not wasting your time and money following a path that will not likely lead to a patent being granted. For more information on patent searches see Patent Search FAQs, Patent Searching 101 and Patent Searching 102.
Of course, no single article can teach you how to write a patent application, but if you understand some of the basics of what will need to go into the patent application you are ahead of the game, and I think you may wind up with a better, more complete game in the process.
It is simple enough I know, but I am a fan of starting with something easy. What is your invention in one sentence or less? Not surprisingly that will be the title. While coming up with a title seems like a trivial step frequently I find that the way you characterize the invention in that pithy first sentence can focus the direction of the entire patent application, setting the tone and theme for how you want to present your invention.
If you do a Google Patent search for “board game” you will find page after page after page of patents simply titled “Board game.” Not very creative to be sure.
The title should be a brief but technically accurate, descriptive and should contain fewer than 500 characters, although a 500 character title is rather rare and really unnecessary. Typically you want to come up with a short title and I typically suggest is that you consider a title that is descriptive and 8 words or less. Here are some examples of titles that convey at least a little more information that “board game.”
- Board game simulating horse racing and wagering – See US Patent No. 5,226,655
- Construction board game with chance device – See US Patent No. 5,301,953
- Board game relating to stress – See US Patent No. 5,435,565
In my experience one of the things that inventors of board games frequently forget is the inclusion of alternative methods of play. Don’t just focus on the preferred method of play and preferred rules, but think about ways that the game can be modified and changed. Let me use an example from the extremely popular game Monopoly.
One of the things that keep many people from playing Monopoly is the length of the game. That has lead to any number of various “house rules” to be implemented by those who love the game but want it to be played faster so the game can be completed in a reasonable time frame, or at least before everyone loses interest. So if you invented Monopoly in addition to the traditional rules you should give some thought to rules associated with accelerated play. For example consider text like this:
Alternatively, in order speed up play one or more of the following rules can be agreed upon by a majority vote (or unanimous vote) of all players prior to the commencement of the game: (1) the title cards to each of the properties can be divided amongst the players at the beginning of the game; (2) only need 3 houses are required to be on a property in order to purchase a hotel rather than the 4 described in the regular game rules; (3) a predetermined time limit can be placed on the game (i.e., such as 90 minutes) with the winner being declared at the end of the given time period based on the player with the most cash.
Obviously, there is no particular magic to the above paragraph, and if you you wanted to write down all the various methods to accelerate play you would need multiple pages of text. But that is exactly what you want in your patent application. You want to cover whatever you can no matter how imperfect. If it works on any level it should be included because if it is not then you don’t own those rights, it is that simple.
If want your patent to be as broad as possible you will want to include any number of alternatives. That is true for any invention, but no where is it more true than with respect to board games.
What kind of rules do you use when you play at home? Give it some thought. In the meantime check out The Key to Drafting an Excellent Patent – Alternatives.
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While you probably do not want to talk very much about “prior art” in your patent application it is always helpful to appreciate what is in the prior art. If you do not know what is in the prior art how can you ever hope to describe your invention in a way that accentuates what is most likely unique? Without knowing what is in the prior art for all you know you might just be describing exactly what is in the prior art without anything unique being added. You just don’t know.
What kind of understanding of the prior art do you need? Obviously, you need an honest view of the prior art, but beyond that you need to be able to tell the story of the prior art in writing so that you can set up the uniqueness of your invention. For example:
In a conventional trivia game, an objective question is posed to a player, and if the player answers the question correctly, he or she is entitled to advance toward a winning position. If the player cannot answer the question correctly, no advancement occurs. Typically, such games are won by the player whose movement piece has traversed a predefined movement track. The questions of such games usually have specific answers, and generally comprise subject matter—often obscure—that can be divided into categories such as sports, arts, geography, politics, history, science and so forth. Such games generally require players to recall specific pieces of information for strategic advantage, and thus do not require players to think critically, answer subjective questions, collaborate, or make strategic decisions.
Now you may NEVER write something like that in a patent application, or if you do you might have it be extremely abbreviated. Why goes beyond the scope of this article, just trust me for now. Nevertheless, you absolutely need to be able to explain what is out there in this type of fashion. By describing the prior art for yourself you start your creative wheels in motion. If this is how someone would fairly characterize the prior art how do I convince them that my invention is unique?
Truthfully, if you cannot fairly describe the prior art and then articulate distinguishing features you really don’t have an invention. However, if you do fairly describe the prior art and then critically look at your invention you may well be able to identify things that are lacking in the prior art and then modify your invention to exploit those missing pieces.
Now you understand what is in the prior art and have started to figure out how to explain the differences between your invention and the prior art. The next step is to put this into some kind of workable framework that is likely to lead you to an articulation of the invention that has a chance to be deemed unique enough to obtain a patent.
If you are going to obtain a patent you are going to have to describe an invention, in this case a game, that is unique. It cannot be identical to anything in the prior art (a novelty consideration under §102) and it cannot be obvious in light of a combination of prior art games (a consideration under §103). You absolutely need to be able to articulate how and why your game is unique. If you cannot do that then you really don’t have an invention, although the game might be quite entertaining.
At the risk of oversimplifying this very important step allow me to encourage you to work on something of an “elevator speech” that will explain WHY your game is unique. An elevator speech needs to be able to be delivered in about 15 to 20 seconds. Imagine you were in the elevator with the CEO of Toys R Us. You have from the 1st floor until whatever floor they are going to get off to pitch your board game and generate enough interest to get to the next phase. This needs to be rehearsed, delivered precisely and leave the CEO wanting more. For example:
My board game is unique when compared with other known educational games because it requires players to go beyond mere recollection of specific, and often obscure, facts, and requires the participants to think critically, answer subjective questions, collaborate and make strategic decisions. By playing the game children develop skills that help them bridge the gap between regurgitation of facts to synthesis and presentation of information.
If this were really an elevator speech you would want to weave in a bit more, but for our purposes it is sufficient for now. What you have here is an articulation of WHY the game is unique, not HOW the game is unique. In my experience inventors are good at either explaining why their invention is unique or explaining how their invention is unique, but rarely both. My theory is that is because most people don’t distinguish between why and how, but in the inventing world this is crucial.
You can point to steps of play that make your invention different from a HOW perspective, but why is that difference really unique? What underlies the difference, if anything? Similarly, the game may be educational in nature and work toward building a skill set for players, whether children or adults. The fact that there isn’t anything known that delivers the same WHY factor is helpful, but not enough to get a patent. Patents need to focus on mechanics and process.
Before progressing let me give you an example of a HOW statement:
The game is unique because the playing surface is made up of three similar boards or grids lying in three vertically spaced planes. Each of the three boards is divided into thirteen similar spaces or squares. Nine of the spaces form a square, three spaces on each side of the square surrounding a central space. The remaining four spaces lie outside the square with one space lying next to the center space of each of the four sides of the square.
Did you follow along? Probably not, but hopefully get the idea. Here the HOW is associated with the game board and if you were describing this you should have an illustration and refer to that illustration to assist the reader in following along. Pictures are worth 1000 words — if not more — so for goodness sakes never skimp on professional drawings. In any event, the unique playing surface almost certainly influences the objectives of the game and the playing steps, so you can use a structural uniqueness to build upon to further explain process step uniqueness.
In my opinion the several paragraphs you will write that address the why and how are critical. They set the theme for the invention and can help provide that critical “A Ha” moment. In my experience if there is really an invention there is it usually clear, but along the journey to describe the invention so that others will appreciate the magnitude of the uniqueness you need to capture them and give them a reason to understand that same “A Ha” that you have. Thus, spending time figuring out the how from a process level and the why that underlines the process level will be very beneficial.
Before leaving this topic let me return to the WHY statement about the education board game above. Here is one way that you might be able to envision the WHY and the HOW coming together:
The present invention is an educational board game. The invention goes beyond mere recollection of specific, and often obscure, facts, and that requires the participants to think critically, answer subjective questions, collaborate and make strategic decisions. In particular, the game challenges players’ knowledge and understanding of important information about United States government, history and culture. The game comes with instructions, a game board, and multiple player pieces, question cards containing easy, intermediate and difficult questions, and an answer key. Each question card will have both an objective question with point total and a subjective question. Players advance their player movement pieces along the player movement track the number of spaces corresponding the number of points achieved, with the subjective questions being evaluated and scored by other players. The object of such a game is to be the first player to traverse the player movement track.
As you can imagine, there is so much more that can be told about inventing and then patenting a board game. This only scratches the surface, but hopefully it will give you some actionable ideas about how to move forward.
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.