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Why current age 'video gaming' is a joke
Gray_Area:
Vigo. shmokes is a lawyer, yo (although I don't have the experience in seeing a lengthy post by shmokes that I do instantly when I see a post by X).
shmokes:
Though, to be fair, I'm not an intellectual property lawyer. I had an IP class in law school, but the only actual IP work I've ever done as a lawyer is about three weeks of document review on a patent dispute case that had nothing to do with the validity of a patent but rather claims that one company was exceeding the scope of its license to use another company's patent.
Vigo:
Yep, I know your legal background, and respect that. I'm also appreciate you are respectable about it as well and not once pointing it out. :cheers: I don't have any legal background other than employment and labor law. I do take an avid interest in the topic of IP law and read up on it quite a bit.
I also wan't to point out, as I'm sure shmokes already knows, that patent law over software is controversial right now. I'm sure that there are IP lawyers out there agree take my position, as IP lawyers who take shmokes position. Patent law was in a bulk, formed before such a concept of software existed. The supreme court has remained very silent on certain aspects of their position in cases involving Software patents. Intentionally leaving certain areas open to interpretation. Frankly, I'm sure it has a lot to do with that they don't understand the inner workings of programming.
--- Quote from: shmokes on July 15, 2012, 01:19:55 pm ---You are also getting basic patent principles wrong. You say that, "Since light rendering is common to game engines, it cannot be patented." That is not true. That's like saying that since directional input is common to videogames, Nintendo could not patent the directional pad on the NES gamepad. Which, of course, they did. Once again, prior art is not the reason light rendering as a concept could not be patented. Of course, prior art exists, but the courts would never even get to that question. Light rendering, as a concept, is fundamentally not patentable for more-or-less the same reasons that math by itself cannot be patented.
You're also wrong about math and software generally being unpatentable. It's a very muddy area of patent law. Specific applications of math when combined with a machine, are patentable. Patent holders for years have used the general purpose computer as the "machine" in that formula, arguing that their code alters or transforms the general purpose computer. And those patents have been issued time and time again.
--- End quote ---
With the Nintendo D-pad case, you are talking about a unique physical machine. Yes, that is novel, that is patentable. It was not directional input that was patented, it was a physical pad that you could control directions with your thumb. If they were not the first to do it or secure a patent, then they could not patent a directional pad. now in the case of light rendering, I assume every modern game engine out there today has light rendering. What differenciates renderer 1 from renderer 2? code. They all still do the same thing and nothing physical separates them. It really has nothing to do with prior art at all. It has to do with the novelty portion of patent law.
So now you point out that math can potentially be patented when it is coupled with a machine. That a machine with only differing code from the next can be patented. That is actually untrue and that goes back to the Diamond v. Diehr case I pointed out earlier. The court pointed out that a machine that used computer code as part of it's function could be patented, but the computer code used is completely unpatentable. They determined that computer code is math and math is not patentable. The machine could be patented but not based the computer code as the factor setting it apart. There would have to be more unique to the machine in order for a patent to be issued.
I don't know how else to put this. I mean, computer code is not patentable, the supreme court said that on multiple occasions. nothing about game engine "A" compared to game engine "B" is novel other than computer code and computer code is not an eligible criteria for a patent. So where is the notion of patentability come from? If the engine accomplished something truely unique to gaming, then perhaps it has a shot, but If I make a super duper first person shooter engine that looks spectacular, there is nothing that is unique enough other than my steller code that could seperate it enough from the Unreal engine. Now if I devised a way for my game engine to do something new like render air molecules to affect bullet trajectory, then maybe that specific programmed function has a shot at a patent. Everything else that has been done before? No. Not at all.
shmokes:
This argument is taking a bunch of strange jumps. First, I know that in general code is copyrighted and not patented. This whole discussion started from me saying that I think software should be governed by patent rather than copyright, and saying that, lacking specific legislation, courts decided to protect code under the guise of copyright.
Nevertheless, software (and math) are patented on a regular basis. I think that you are misreading the Diamond case. In upholding the patent in issue, the Supreme court noted:
--- Quote ---. . . the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to pre-empt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process.
--- End quote ---
[Emphasis mine]
--- Quote ---when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of 101.
--- End quote ---
--- Quote ---In Gottschalk v. Benson we noted: "It is said that the decision precludes a patent for any program servicing a computer. We do not so hold." 409 U.S., at 71 . Similarly, in Parker v. Flook we stated that "a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm." 437 U.S., at 590 . It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.
--- End quote ---
[Emphasis mine]
This is similar to Larry pages patent on his page rank algorithm. He did not patent the algorithm in the abstract, but nobody else can use that algorithm in conjunction with a search engine. You can't be even passingly familiar with the smartphone industry and the various injunctions Apple, Samsung, Google/Motorola, etc., are fighting every day (injunctions, it's worth noting, that are generally cured by a software update), and not know at least intuitively that software patents exist. The MP3 encoding format is patented. So is H.264. Here's a website dedicated to discussing software patents and related disputes.
I'm telling you, math and code are not entirely unpatentable.
But that's all a bit of a digression, cos my whole point was that I think code should not be copyrightable and should be patentable. I know that in general code is covered by copyright. But one major reason for this, I'm guessing, is that you don't have to apply for a copyright to have copyright protection, whereas if you want a software patent, you've gotta submit a patent application to the USPTO. In any case, I didn't mean to start a discussion here about the way things are, but rather the way they should be. Even if you are totally right, and everything I've said here has been utterly misguided and wrong, my fundamental argument here doesn't change at all. Software should be covered by patent, not copyright.
Vigo:
With your previous post on math in patents, I don't think I ever thought on the contrary to your point. I think we were just just completely stepping on each others toes in semantics. If I clarify that Math itself is never patentable but something that uses the math as part of it's function could potentially be patented, I think we agree. It could be software or a physical machine. The math does not make it patentable, but rather the methods and concepts used that could make it patentable.
I was previously getting the impression that you were saying that any game engine designed with better or new features could be patented, from points like your ingredients in a drug recipe arguement. I see that is probably your point of view on how you would like patent law to view it, rather than how it really is currently viewed. Makes sense now. Sorry about my complete misunderstanding on that, I wouldn't have debated you on it had I been thinking about that. 8)
I do agree that if in theory if someone designed a video game employing some new and novel ideas, they could potentially patent the particular portions of that game that are truely unique. And I am not talking a better coding way to render more visually stunning image, or a cooler looking HUD etc. I mean something really new and unique. So, maybe if a video game came up with a totally innovative AI system, the game nor the engine on a whole should be patentable, but I believe the AI system could potentially be patented. So in that sense, I am totally agreeing with you about patents in video games.
I personally don't see a whole lot of innovation these days. 99.9% of games out there today have nothing unique, so I would say that 99.9% of games made should not be patentable. I guess my point is coming full circle back to the OP's original point then. :lol
So, I think we may have possibly have differing opinions on how much could be patented in games, or how the that patent should be reformed for modern technology, but after adjusting my interpretation of your posts, I think we are pretty much agreeing on the state of patent law. :cheers:
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