How to protect intellectual property (IP) rights to a board game? Obviously, game publishers can use different intellectual property means: texts and images can be protected by copyright, an appearance – by design patents, a name and other elements of a brand – by trademarks.
In Russia and other countries with similar IP laws, the list of available protection ends here. Russian game publishers believe – as well as some Russian IP lawyers – that IP law allows protecting only an appearance of board games, but not gameplay. The common point of view is that gameplay can be patented in foreign countries, but not in Russia because of para. 5 art. 1350 of Civil Code of The Russian Federation under which rules and methods of games shall not be deemed inventions, so they cannot be patented. This also stops foreign publishers from getting full IP protection in Russia such as in other countries.
Well… Challenge accepted!
I’m going to show you that despite this statement of the Russian Civil Code, anyone in Russia can get a patent for a board game gameplay and protect it against copying and counterfeiting.
Here and there
Seriously, it is weird that creators of games in Russia can’t get full legal protection of their creatures, isn’t it? It is hard to believe that it is possible to protect only some external stuff like graphics and texts, but not to provide with legal protection the very essence of a board game – its gameplay. If this is true, the Russian IP law is a real mockery! Why Russian legislators are so evil?!
Let's get this over with.
Indeed, Russian law doesn’t allow to protect rules and methods of games. There is no the same provision in the USA legislation, so US lawyers have no doubts it’s possible to get exclusive rights to gameplay. That is why there are a lot of patents for board games in the USA patent register such as the well-known Monopoly, Magic: The Gathering, various role-playing games, etc.
Image: The patent for a Monopoly board game. Source: http://pdfpiw.uspto.gov/.piw?Docid=02026082
There are also many patents for board games in other countries. For example, here is a French patent for a board game in which players collect crystals while moving on the special field:
Image: The special field from the French patent for a board game. Source: https://bases-brevets.inpi.fr/en/document-en/FR2705249.html?s=1549289812208&p=5&cHash=624bbcd6d1923da1d420b5ba878ac0f3
And here is an Indian patent for a game with special dices:
Image: Special dices from the Indian patent for a board game. Source: https://patentscope.wipo.int/search/ru/detail.jsf?docId=IN223577899
What if I say that patent laws in many countries, including France, Sweden, India, the Philippines, and others, as well as Russian law, don’t recognize rules and methods of games as patentable objects? Prohibition of patenting rules and methods of games also exists in The Patent Cooperation Treaty (PCT) which includes Russia... as well as the USA.
However, as anyone can see, this provision doesn’t confuse foreign board game developers, so they continue to get patents for more and more games.
How is it possible?
The secret is that gameplay is much wider than just rules or methods of games. Gameplay is a way of players’ interaction with a game, while rules and methods of games are something about relations between players, not between a player and a game.
That is what Indian lawyers wrote about it:
«The Patent Act states that ‘a mere scheme or rule or method of playing a game’ cannot be protected as a patent. So if the creator of the board game has devised something which is more than just a rule or method of playing a game and the same is novel, involves an inventive step and is capable of industrial application (production of the board game in this case), it may be patentable as well!»
Thus, in other countries, where patent laws are the same as in Russia, appliers don’t see the problem with the registration of exclusive rights to a board game gameplay. Therefore, such registration must be available to Russian game publishers and developers too. It’s even possible to find a few examples in the Russian patent register.
No any reason
Maybe, contrary to other countries, Russian legislators really had plans to prohibit patenting of gameplay? Who knows, there were hard times at the turn of the millennium…
Well, no, they didn’t.
Provisions about unpatentability of rules and methods of games appeared in the Patent law of the Russian Federation in 2003 and were repeated in the Forth Part of the Civil Code of the Russian Federation that is active now. Research of legislative documents regarding these provisions shows that no one cared about this novelty, it was just a result of the implementation of foreign laws. In other words, there is no reason to believe that in 2003 Russian legislators really wanted to prohibit patenting of gameplay in Russia.
How it works
A patent for gameplay in Russia usually can be applied as a way to resolve some deficiencies of existing board games of the same kind, and the essence of an invention is an improvement of some known gameplay. It’s well within such criterion of patentability as being deemed industrially applicable.
To get a patent for a board game, appliers should describe general features of a relevant kind of boardgames, point existing deficiencies, and offer their own variant of these board games as a solution. For example, applier of this patent for chess with 100 squares pointed a lack of squares as the disadvantage of classic chess. You can try to guess what the applier’s solution was… Of course, to add more squares! The solution also includes new chess pieces like General and Jester, a king’s vertical, and other improvements.
Image: a scheme of chess with 100 squares. Source: http://www1.fips.ru/fips_servl/fips_servlet?DB=RUPAT&DocNumber=2207178&TypeFile=html
Unfortunately, board games are patented very rarely in Russia, as too many people are sure it is not allowed. There are only a few patents for board games in the Russian patent register and most of them are inactive.
There is an opinion that lack of patenting practices allows game publishers to compete on the basis of price and quality of similar games and it’s good for customers. It’s hard to argue with it. However, there is another side: lack of patenting practices doesn’t allow to grow competition on the basis of originality of gameplays, so in most cases it’s easier for publishers just to copy existing ideas and not to create something new.
Maybe, that is the reason why most Russians’ view on board games is limited to classic games: chess, domino, Monopoly, a lot of Monopoly-clones, etc. Once in a board game store, I have seen a seller who tried to complain to a buyer that Monopoly is out-of-date now and there are many new beautiful games today, but it was too complicated for a buyer. That was quite sad.
Another problem is that without patented gameplays board game creators can’t protect their creations against exploitation, so creators in Russia usually have a lack of motivation to continue their work.
However, the times they are a-changin'. One day practices of patenting board games in Russia will evolve, and there will be more and more brand-new board games.
Author: Victor Gorsky-Mochalov, August 13, 2020
На русском / Russian version: https://habr.com/ru/post/439700/
Cover image by Ylanite Koppens, source: https://www.pexels.com/photo/close-up-photo-of-monopoly-board-game-776654/
Tags: intellectual property, patent law, boardgames