Why current age 'video gaming' is a joke

[shmokes]

I admittedly have skipped most of your arguments, but I sense that perhaps y'all may be conflating various IP concepts. Game mechanics are virtually unprotectable. You can't copyright an idea, only a particular expression of an idea. An idea can be patented, but that's unrealistic. You'd have to have a separate patent for each game mechanic you wished to protect, and it'd have to be something totally unique, innovative and not obvious. Think of the most innovative game mechanics of the last 20 years. You'd never get a patent for most of them. Before Portal, I guarantee that there were other games with portals or wormholes or warp zones that transported you from one part of a level to another. The prior art would invalidate the patent.

Trademarks can last forever, but a trademark can be invalidated by disuse, so actual characters are primarily protected by copyright, but that's no problem. No reason anyone needs to appropriate someone else's characters for a game. Just make your own. I really don't think IP laws are hindering development or innovation in the videogame industry. In the tech industry and pharma industry, sure, but not videogames.

[404]

I admittedly have skipped most of your arguments, but I sense that perhaps y'all may be conflating various IP concepts. Game mechanics are virtually unprotectable. You can't copyright an idea, only a particular expression of an idea. An idea can be patented, but that's unrealistic. You'd have to have a separate patent for each game mechanic you wished to protect, and it'd have to be something totally unique, innovative and not obvious. Think of the most innovative game mechanics of the last 20 years. You'd never get a patent for most of them. Before Portal, I guarantee that there were other games with portals or wormholes or warp zones that transported you from one part of a level to another. The prior art would invalidate the patent.

Trademarks can last forever, but a trademark can be invalidated by disuse, so actual characters are primarily protected by copyright, but that's no problem. No reason anyone needs to appropriate someone else's characters for a game. Just make your own. I really don't think IP laws are hindering development or innovation in the videogame industry. In the tech industry and pharma industry, sure, but not videogames.

I'm not even sure where anyone keeps bringing up anything about game mechanics and copyrights. My argument was never about the mechanics of a game being copyright-able. I'm speaking on principle here. When you have a game that is blatantly copying another in such a way as some of these so called "retro indy" games have is nothing more than copying and sadly is not as original as most people give them credit for.

If a 5 year old 3D FPS game is being copied by an FPS that is about to be released it seems everyone is up in arms about it. A game that is 25 years old and someone comes along and suddenly blatantly copies it seems that some people leave the copying subject up to debate. Not to mention more and more classics are becoming easily accessible outside of the what some of us know as the emu scene. It's all just my opinion guys, nothing to get your feelings hurt over.

[Xiaou2]

I'm not even sure where anyone keeps bringing up anything about game mechanics and copyrights

 Because you said these Indie games were Copies... but with different graphics / sounds / levels ... which basically leaves One thing:  Game Mechanics.

If a 5 year old 3D FPS game is being copied by an FPS that is about to be released

 Umm..  All FPS games are pretty much the SAME game.  They have been the same, for like +10yrs.   I wish they would go away, so that good games could be made in their place.

[shmokes]

 Umm..  All FPS games are pretty much the SAME game.  They have been the same, for like +10yrs.   I wish they would go away, so that good games could be made in their place.

That's just silliness. Far Cry is not Halo is not Portal is not Half Life is not Deus Ex is not Thief is not Bioshock. There's as much room for innovation in the first person perspective as there is in the 2D side-scroller.

[Malenko]

That's just silliness. Far Cry is not Halo is not Portal is not Half Life is not Deus Ex is not Thief is not Bioshock. There's as much room for innovation in the first person perspective as there is in the 2D side-scroller.

^I'm with this Chad on this one ^

[shmokes]

 

[Gray_Area]

Game-wise....well, that's just it, it shouldn't be a game. It should be like a dream, where you might know it's not 'real', but it's real. Actually, you can do this every night when you sleep. Oh, but you can play retro games in your dreams. Sometimes I do.

Sounds to me like you're less about the video games and more about the recreational narcotics. 

Hah. All-natural, baby!

[danny_galaga]

Free market. They aren't ripping off code, are they?

Why is 'free market' not an equally acceptable answer to ripping off code?

Not quite understanding this. But maybe I shouldn't have used the term 'free market'. I probably should have said 'designers are free to design what they want, whether it resembles another game or not, so long as they aren't ripping off code which can be an infringement of copyright'.

[shmokes]

Yeah, I think "free market" is what put question marks over my head. Nothing but a law restricting the unfettered free market keeps people from ripping of code. And ideas too, frankly. Designers are not free to design a game that contained, for example, Mario. Unless those designers work for Nintendo, of course.

Frankly, I don't think that code should be copyrightable. It should be patentable. The U.S. Patent law (35 U.S.C § 101) says that any "new or useful process, machine, manufacture, or composition of matter" can be patented. It makes far more sense to think of software code as a "new or useful process" than as an expression of creativity like music or writing. It's not like without copyrighting the code you aren't still going to have copyrights on the content. All the characters and world and dialogue, etc., from a videogame are not just copyrightable, the copyright attaches automatically at the moment of creation--regardless of whether the code is protected. But the code is just a process for making those things happen. Code is technology.

I could go on. But the fact that code is copyrightable is both bad public policy and a direct restriction on the free market, IMO.

[Vigo]

I agree with you about the copyright portion, but with patenting, I don't even think code should be patentable. The act of coding could have been patentable, or at least coding in a specific language. The ability to code whatever you want is the "new or useful process", not utilizing it's function. It would be like patenting Photoshop techniques.

Also, it would be a playground for patent trolling if it was patentable. Keep in mind that a patient would not protect the exact coding, but rather the methodology used to accomplish the coding's function. If I made a video game where the guy jumps, I would code parameters for the character to move up for a certain distance, then back down until they hit the ground when when a button is pressed. If someone goes and lays a patent on that, other designers could make a game with a jumping guy, but they would have to find backwards ways of writing a jump function in coding, e.g. write a function that the distance between "ceiling point A" and the guy decrease for a three seconds, then increase until he hits an object below him. I know the ship has sailed for a patent on jumping in a video game, but my point is that with every innovation that gets made in video games, every subsequent company that wants to design that sort of function into their video game will have to examine the patent to make sure they are using a different coding method than the patient.

[shmokes]

No, I'm talking about patenting very specific implementations. You couldn't just patent the concept of making a character jump onscreen because that wouldn't pass muster for a patent. Even putting aside prior art, patentable ideas must be new/innovative and non-obvious. And more importantly the whole point of a patent is that it's an exchange between the inventor and society. In exchange for a limited-period monopoly, the inventor must give specific instructions re: how to recreate his invention. Once the patent runs out it's no use to society to check out the guy's patent filing and see piece of paper that just says: Write code to make a guy onscreen jump.

I'm thinking about something more along the lines of the Unreal Engine. You grant them a patent on the entire engine, and during the monopoly period people can't use the specific code from the engine. But when the patent expires, the whole thing is public domain. I'd analogize the code to a particular recipe in pharmaceuticals. Pfizer patents Viagra--in so doing they hand over the recipe to society, but nobody else can commercialize it. That doesn't stop others from accomplishing the same result with another recipe (see: Cialis). The code in the unreal engine seems to me like the chemical makeup, the recipe for Viagra.

[Vigo]

Umm..........The example of the guy jumping was simply an illustration. Of course it is not patentable since jumping occurs all the time in video games. I am referring to game functions that have not been concepted yet. For example, a unique item generator function in a game.

As you point out in your drug patent example, it is not the pill itself that is patented, nor what it can do. It is the ingredients that are patented. So therefore, the Unreal Engine as a whole cannot be patented, FPS game engines already existed. A patent only covers the invented methodology that is new and unique. So then, the unreal engine is not patentable, then it dissolved back to the "ingredients" as you call them in the drug example, i.e, stuff like the "guy jumping" as being the part that is under question. Things in a game engine shooting to light rendering only serve the purpose of shooting and rendering light. A patient on those would only basic function. All the patented ingredients in viagra are designed to give people an erection. The difference in a gaming engine is that it serves many functions, not just one. To think of it in a more tangible way, I remember the thread on the Street fight cabinet patient. It had a patient out for a system to create a hydraulic feedback on the joystick. Capcom did not create a patient covering the entire arcade machine. All the elements that make up a standard arcade machine at that point were unpatentable. only the hydraulic controls were novel. So why should the unreal engine be patentable when most of it's concepts already existed?

Now you can argue that a new idea itself in coding could be patentable, but things like inventory management or battle systems are just ideas. They cannot be patented. So what does that leave us with? Gaming physics; rendering, shading, the real gears that drive a game. That is nothing more than applied mathematics. you cannot patent math, even if it's use serves a tangle function.

And I also want to mention, while I agreed with you before that coding should not be copyrightable, I was only referring to coding functions. The Unreal engine as a whole should be copyrightable. If someone goes out there and copies the the unreal engine for their own game to run, that is plagarism and falls under copyright law.

[shmokes]

Sorry . . . that's a lot to write based on a complete misunderstanding of the post you were responding to. I should have explained better. "Prior art" means that something you are trying to patent has already been done before (and it precludes getting a patent). So when I said, "Even putting aside prior art . . . , " I mean, even if nobody had made a videogame guy jump before, it wouldn't be patentable for those other reasons I listed.

I have the impression that you also misunderstand my pharmaceutical analogy as well. Viagra doesn't patent an end result. It patents an exact formula that leads to an end result. Similarly, Epic wouldn't be patenting the concept of a 3D engine. They would be patenting specific formulas that make up their 3D engine. The Crysis engine (like Cialis with erections) produces more or less the same result, but it uses different formulas (different code). That's basically how most patents work. When someone develops a better combine, the patent office doesn't say, "You can't patent that. People have been harvesting grain for years." They give you a patent on that particular way of harvesting crops. I'm not talking about patenting battle systems or inventory management. I'm talking about getting a patent on the particular method you use of creating those things (your code).

Math, by the way, isn't entirely unpatentable. Google would not be the company it is today if Larry Page/Stanford didn't have a patent on his search algorithm. You can go ahead and continue using math all you want. But Bing and Yahoo certainly cannot apply that algorithm to their search engines.

If someone goes out there and copies the the unreal engine for their own game to run, that is plagarism and falls under copyright law.

Of course. That's the whole reason we're having this discussion. I said, "Frankly, I don't think that code should be copyrightable. It should be patentable." This is the case because courts, lacking specific legislation to deal with a new technology, eventually settled on protecting programmers' work under the guise of copyright. But copyright wasn't created for, nor is it suited to, protecting something like software code. Computer software is not a creative/artistic work the way a drawing or a book or an essay or a poem or a piece of music is. Code is more like the plumbing and wiring and framing of a building. There's never going to be a gallery displaying famous works of code. Nobody's going to publish an anthology of John Carmack's most innovative code (for people to just read for enjoyment, mind you, not for them to use which is illegal). Code, in short, is not art.

But more importantly, think about the policy behind our intellectual property system. Why do we do it? We worship the free market and abhor a market failure, the worst of which is the dreaded monopoly. When a monopoly develops naturally, we have a government agency that goes in and chops the company up. We hate monopolies. So why would a society so hellbent against monopolies actually grant monopolies to patent holders? The simple answer is to "encourage innovation". And while that's true, the better answer is that we aren't granting a monopoly. We're selling it. Because it's an exchange. As you can see from the link to Larry Page's Google patent, it's ALL there. In exchange for a temporary monopoly, he has to give us EVERYTHING. And when the patent runs out, that information that might otherwise have been locked up as a trade secret for a hundred years, even lost forever if the company ever disappeared (history is rife with examples), all that information belongs to society. Same goes for Viagra. When their patent runs out, society already has the recipe--and has had it since Pfizer submitted its patent application. On the day of expiration, the generics will already be on the shelves, identical to the original.

Copyright is an entirely different story. It's meant to protect creative expression. And, importantly, it protects it for a ---smurfing--- long time--the life of the author plus an additional 70 years! That creates some obvious problems for code. For one thing, who is the author? It could be hundreds of people. In that case we can treat it as an anonymous work and then the protection just lasts a flat 95 years from the date of publication or 120 years from the date of creation, whichever comes first. Obviously this means that no useful software can ever revert to the public domain. There will never be a time in history when 100 year old software will be useful to anyone. Moreover, since it's not an artistic work, like everything else that can be copyrighted, it's no good to the public while it's under copyright.

Computer code, IMO, is about innovation, not artistic expression. The patent system is designed to encourage innovation. A patent lasts only 17 years (IIRC), which makes WAY more sense for software than 75-120 years. Frankly, I think we need new legislation creating a "software patent", that would expire much sooner, maybe 10 years (taking into account the pace of change and innovation in the industry), and addressing any areas where the standard patent laws don't fit well on account of having been written before computers were a thing.


edit: typos

[Vigo]

Phew that was a big wall-o-text, are you gunning for the X2 award there? 

I am sorry you have the impression that I don't understand patents perhaps you should reread my post. Things that you claim I don't get, such as "prior art" or not being able to patent end results...that is the exact points I am trying to make. So when you said you thought the unreal engine should be patentable, I am saying it can't for those exact reasons.

Math, by the way, isn't entirely unpatentable. Google would not be the company it is today if Larry Page/Stanford didn't have a patent on his search algorithm.

First, math is not patentable. Read Gottschalk v. Benson, the supreme court determined that the math composing the makeup of computer software is not patentable. Read Diamond v. Diehr, they again determined the same thing. Math is not patentable.

Second, the Google Search Engine, nor the Algorithm itself is patented. What is patented is "PageRank" Pagerank was a utility that was made by one of the founders of Google. It was a utility that more or less ranked webpages by the number of times it could find an outside link to that webpage. Since math is not observed in the patent, Yahoo could use that exact algorithm to do whatever they want other than produce search results. So, they could use that exact algorithm to determine where to place advertising. Inversely, yahoo cannot rank pages on external link counts, even if they come up with a completely different mathematical method of doing so.

Now why does that not apply to game engines? Well, because most all aspects of game physics, rendering, shading, interface, etc already exist. you could have the most unique amazing algorithm the world for rendering lighting in a video game, but since light rendering is common to game engines, it cannot be patented. I come up with new physics method? It might look a hundred times more realistic, but sorry, its all just the math that really differentiates it from a previous physics model. We might be entering some new patentable turf we we progress to more VR/realism tech of video games down the road, but a gaming engine or unique coding or a game itself? No. Not patentable.

[shmokes]

What you appear to be misunderstanding is my point. I wasn't trying to explain the concept of prior art to you. I was trying to explain that prior art is irrelevant because the concept of making a videogame character jump was never patentable.

I said:

You couldn't just patent the concept of making a character jump onscreen because that wouldn't pass muster for a patent. Even putting aside prior art, patentable ideas must be new/innovative and non-obvious.

To which you responded:

Umm..........The example of the guy jumping was simply an illustration. Of course it is not patentable since jumping occurs all the time in video games. I am referring to game functions that have not been concepted yet.

In other words, you obviously misunderstood my post. My point was that prior art wasn't the issue and your response was essentially, "Duh . . . I already know that prior art is the issue."

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.

[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. 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.

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.

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:

. . . 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.

[Emphasis mine]

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.

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.

[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.

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. 

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. 

[shmokes]

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. 

This fact is actually central to my reason for wanting to protect code exclusively with patent rather than copyright. If you write some code that is truly innovative, ---smurfing--- patent your creation like every other inventor. But as it stands, even though, as you say, 99.9% of the code out there totally devoid of innovation (and obviously it has no artistic value), every single line of code is automatically subject to 100+ years of protection at the moment of its creation--you don't even have to apply for the protection. Though if someone figures out cold fusion or teleportation or builds a real-life Star Trek replicator, they're going to get only 17 years of protection from the date of application. Or no protection if they fail to make a formal and proper application for protection. It makes no sense. 

[Vigo]

I do think that video games have artistic and innovative value, but more along the lines how putting Jack Daniels in Sweet Baby Rays BBQ sauce is a good improvement. It might be clever, but by far not the first time alcohol has been introduced to BBQ.

I completely agree with you on how much of a joke copyright law is. Its not that I think copyright shouldn't exist, it is that it shouldn't exist for the duration or degree that it does. I also think that copyright should in essence diminish with age. So a currently held copyright like Donkey Kong would not even have the same controls on the original game as it has on something newer like that DK game for the Wii. I think a flat out full copyright protection, until it expires is a bad thing. (Expecially when the expiration is 70 years after the creator's death).

[shmokes]

And don't get me wrong. Videogames are dripping with artistic value. I'd copyright the ---steaming pile of meadow muffin--- out of videogames. Mario and Bowser and Peach are copyrighted. The dialogue in Grand Theft Auto: San Andreas--copyrighted. It's specifically the code behind the games that should be subject to patent and not copyright.

[shmokes]

Its not that I think copyright shouldn't exist, it is that it shouldn't exist for the duration or degree that it does.

There's a running joke in the IP industry that copyright lasts, "For the life of Mickey Mouse plus 70 years." Because copyright protection didn't always last so long. I think it used to be only 50 years of protection. But Disney successfully lobbied for legislation extending the duration of copyright protection at least once, maybe twice, when the copyright protecting Mickey Mouse was getting ready to expire. So shortly before he's set to come into the public domain again we can probably assume that copyright law will be changed again to give life of the author plus 100 years.

[Vigo]

Half a novel of debating, and it turns out we agree on this ---steaming pile of meadow muffin---. 

[Gray_Area]

Half a novel of debating...

That's what I meant, V.

[Vigo]

In all fairness, shmokes had a lot that he did not thresh out. You can't just state that you think video games should be patentable and expect that to make sense. We are talking about a work that for most cases is completely unoriginal and unchanged except on the creative end and mathematical details. It's kinda like claiming wall clocks should be presently patentable. Even a law degree doesn't give you a pass on that without better explanation.

I'll admit though I did make a lot of assumptions on his argument that drew things out much longer than needed. In the end it panned out to be another pointless internet argument, but I don't think either shmokes or I are phased by it. 

[shmokes]

It's kinda like claiming wall clocks should be presently patentable.

You are still suggesting a serious flaw in your understanding of patents. Wall clocks are totally patentable. Obviously you cannot patent the abstract idea of a wall clock. But a specific implementation of a wall clock, if it's innovative and non-obvious, can be patented. This was the frequent subject of our disagreement about patenting code. You would say, "You can't patent making a guy jump or light rendering," but that's not how patents work. You can't patent those obvious or abstract ideas in the same way you can't patent wall clocks in general. But you can patent specific, innovative implementations. You can certainly patent the better wall clock. And until your patent runs out other people will have to make due building regular wall clocks, or wall clocks that are better in some other non-patent-infringing way.

In short, yes, saying that code should be subject to patent rather than copyright is very much like saying that clocks should be subject to patent rather than copyright. And in more-or-less exactly the same way.

[Vigo]

It's kinda like claiming wall clocks should be presently patentable.

You are still suggesting a serious flaw in your understanding of patents. Wall clocks are totally patentable. Obviously you cannot patent the abstract idea of a wall clock. But a specific implementation of a wall clock, if it's innovative and non-obvious, can be patented. This was the frequent subject of our disagreement about patenting code. You would say, "You can't patent making a guy jump or light rendering," but that's not how patents work. You can't patent those obvious or abstract ideas in the same way you can't patent wall clocks in general. But you can patent specific, innovative implementations. You can certainly patent the better wall clock. And until your patent runs out other people will have to make due building regular wall clocks, or wall clocks that are better in some other non-patent-infringing way.

In short, yes, saying that code should be subject to patent rather than copyright is very much like saying that clocks should be subject to patent rather than copyright. And in more-or-less exactly the same way.

Not a misunderstanding of patents at all. Notice I said "presently patentable". A quartz clock today is not patentable. I am pointing out exactly why your argument is confusing. If from ground up, I designed an new concept for a clock, yes it could potentially be patented. You do not buy that kind of clock at the store though. I go to K-mart, Target, Walmart....I find the same standard quartz clocks no matter where I shop. None of those clocks are patentable. None. Sure, there might be some wacky Talking fishhead clock that projects the time through LEDs when you clap that could be patented. However you come across a wall clock that is actually patentable like that only once upon a blue moon.

When you were first pressing your case, you were talking about how video games should be patentable like drugs, it was the precise ingredients that made up a game that made it patentable. That is what really threw me off the trail, because it is suggesting that any game that is designed from the bottom up could be patented as a whole because the "ingredients" were unique. I could equally point out your failed logic, but I am going to go on a limb and say that was just a bad analogy.

[shmokes]

A quartz clock is patentable. You wouldn't even know whether the clocks on the wall at Target have patented tech in them. You come up with a method of making a quartz clock more accurate, more efficient, cheaper to produce, etc., and you'll get a patent. You don't just get patent on things that are completely brand new. You can patent improvements to existing technology.

[ChadTower]

A quartz clock is patentable. You wouldn't even know whether the clocks on the wall at Target have patented tech in them. You come up with a method of making a quartz clock more accurate, more efficient, cheaper to produce, etc., and you'll get a patent. You don't just get patent on things that are completely brand new. You can patent improvements to existing technology.

You would receive a patent on the process for manufacturing a cheaper quartz clock - not a patent on the clock.   A more accurate clock, if it was implemented differently in a physical manner, may receive a patent.  If it is only an improvment of the physical materials involved then it is not patentable.

Patents are on new ways of doing something.  Improvements on existing methods are usually shot down in the patent evaluation process if the holder of the existing method speaks up.

[shmokes]

Improvements on existing methods are usually shot down in the patent evaluation process if the holder of the existing method speaks up.

The patent on the existing method, as in the case of the quartz clock, is often long since expired. Anyway, that's not the point. I'm obviously not arguing that you can patent something that's already patented.

[Vigo]

A quartz clock is still not patentable. If a clock was implemented differently in a physical manner, then it is no longer a quartz clock. As Chad said, any differences in manufacturing on the same method of clock could only patent the process, not the clock.

[shmokes]

This is silly. You're just arguing a straw man now. Obviously a person cannot go out and get a patent on an unchanged quartz clock. Are you seriously going to pretend that that's how you are reading my argument. No, the patent would be on the modified quartz clock. Obviously. Anyway, I never suggested that someone could patent code itself, or even some specific outcome, like light rendering. I said that they should/could patent a particular innovative implementation of said outcome (so long as it's novel and non-obvious and so on). Which makes perfect sense and is perfectly analogous to the clock.

[Vigo]

Anyway, I never suggested that someone could patent code itself, or even some specific outcome, like light rendering. I said that they should/could patent a particular innovative implementation of said outcome (so long as it's novel and non-obvious and so on). Which makes perfect sense and is perfectly analogous to the clock.

If you are not suggesting patenting code itself, what did you mean by this?

I'm not talking about patenting battle systems or inventory management. I'm talking about getting a patent on the particular method you use of creating those things (your code).

Frankly, I don't think that code should be copyrightable. It should be patentable. The U.S. Patent law (35 U.S.C § 101) says that any "new or useful process, machine, manufacture, or composition of matter" can be patented. It makes far more sense to think of software code as a "new or useful process" than as an expression of creativity like music or writing.

You grant them a patent on the entire engine, and during the monopoly period people can't use the specific code from the engine. But when the patent expires, the whole thing is public domain. I'd analogize the code to a particular recipe in pharmaceuticals. Pfizer patents Viagra--in so doing they hand over the recipe to society, but nobody else can commercialize it. That doesn't stop others from accomplishing the same result with another recipe (see: Cialis). The code in the unreal engine seems to me like the chemical makeup, the recipe for Viagra.

[shmokes]

*Sigh*

Anyway, I never suggested that someone could patent code itself . . .

As in, a person could not patent code itself, as a concept, as in, "I have a patent on code. Any person writing any software of any kind without a license is in violation of my patent."

[Vigo]

So what exactly at this point are you suggesting gets patented? At first it was the entire code, then it was an entire engine, then it became the code for a specific patentable feature. Now it is the innovative implementation or an outcome and I don't know if you are referring to the code or use of the concept alone. 

[ChadTower]

Patents on software are on the algorithms.  Code itself does not get patented.  A description of an algorithm, method, architecture, or process within the software is submitted for patent.  If it were just the code or even a specific implementation of the code then you could circumvent a patent by rewriting the software in another language.

[Vigo]

Patents on software are on the algorithms.  Code itself does not get patented.  A description of an algorithm, method, architecture, or process within the software is submitted for patent.  If it were just the code or even a specific implementation of the code then you could circumvent a patent by rewriting the software in another language.

I was wondering about about how code could even be transcripted to a patent application in any useful way, but that brings up an even better point.

Also, I understand a software patents are generally for software that serves a useful function. I always understood that games did not have a real utility to ever be considered for a patent on a whole. At least anything more than a specific feature used that could be useful to more than just that particular game engine.

[shmokes]

So what exactly at this point are you suggesting gets patented? At first it was the entire code, then it was an entire engine, then it became the code for a specific patentable feature. Now it is the innovative implementation or an outcome and I don't know if you are referring to the code or use of the concept alone.  

Is there a point to this? I really don't believe that my position is unclear. I can answer your question if you really want, but I'd primarily just answer it with quotes from my previous posts. I have the impression that you are pouncing on ambiguities in my posts that are not at all ambiguous in the context of our entire conversation, like you think this is some kind of rhetorical staring contest. I'm not trying to win here, honestly. Else, I would have balked at your, "Oh . . . it looks like we actually agreed with each other all along; it was all just a big misunderstanding," after your position on math and software in patents, and your reading of the relevant case law, had been shown to be incorrect. I was perfectly happy to leave it there until you brought it all back up this morning by saying that the problem all along was that I didn't properly explain myself. Not that you misunderstood various aspects of patent law or misread the controlling cases that you cited. But that I simply lacked clarity. It's silly.

But if your question is serious, I suppose I'm happy to oblige.


edit: typo