However, Article 52 states that these inventions are excluded only to the extent to which an application relates to such subject-matter or activities as such. This therefore means that there is scope for sidestepping these exclusions where the invention can be seen to have a contribution which falls outside of these specific categories. The following article explores some of the relevant case law in this regard, and the teachings that we can take from these.

T 0928/03 (KONAMI): off-screen indicators 

In this case the question of patentability arose for the display of an indicator at the edge of the displayed images to indicate the location of a target that is off-screen. This was in the context of a football game, in which a player is made aware of the location of an off-screen player on their team.

The application was rejected during prosecution at the EPO as the provision of the indicator was seen to be driven by the game rules. It emerges from the rules that passing is beneficial, and so facilitating this action offers a gameplay benefit. Therefore as the indicator was seen to be facilitating the passing, it was found to be non-technical.

However, on appeal it was decided that this invention actually addressed a technical problem: that of the limitations of the size of a display screen. This is considered technical because of the competing constraints of a player wanting to see both small-scale and large-scale aspects of the game to play effectively. In other words, the viewing of individual players to facilitate their control is at odds with the viewing of the entire pitch to enable a tactical approach.

Comparisons were drawn to alternative approaches, such as showing a mini-map when zoomed in. The fact that different approaches to addressing the same issue are already known in other contexts speaks to the technical character of the invention, as this indicates a more fundamental problem that extends beyond a specific game or set of rules.

This decision is significant in that it demonstrates that graphical elements in video games can be patented if they can be shown to address a technical problem or limitation on the system. With the range of different devices on which a player can now game, this may be more significant than ever given the corresponding array of technical constraints that a game developer has to contend with.

T 0012/08 (Nintendo): clock-based probability

Claim 1 of the application in question refers to making use of a system’s clock to manage the probability of chance-based events within a game, with the probability of an event occurring being dependent upon the value of the clock at the time of the event. This therefore clearly relates to the implementation of the game, but also recites specific hardware features.

The Board of Appeal noted that while chance encounters themselves would certainly be considered a game rule, the manner in which this is implemented in the claims extends beyond this. As such, it was concluded that the claims should not automatically be considered to be excluded from patentability. One factor considered by the Board was that the way the events are generated was not intended to be known by a user, and that if the user did know, then this would undermine the randomness that is desired. This lent weight to the position that the claimed invention did not represent a game rule in the usual sense.

Instead, the interaction with the clock was seen to bestow technical character on the invention. The Board of Appeal also found that the problem of reducing predictability in a random event generator was a technical one. As such, there was no objection from the Board of Appeal relating to a lack of technical effect or excluded subject matter. These features were also not found in the prior art, and therefore the claims were found to be allowable.

An interesting point made by the Board of Appeal related to the observation that the same effect could have been achieved with dice, or a watch and a probability table. Rather than undermining the inventiveness of the claims, this was seen to be a demonstration that alternative technical means could have been used to generate a comparable result. This suggested that the claims also related to technical means rather than a game rule.

This patent was therefore successful on the basis that the claim required an interaction with technical means to achieve a result that is separate to the use of the result within the game. As such, it can be seen that patents may be successful even where they relate to specific game mechanics so long as they relate to a technical manner in which the mechanics are implemented.

T 1543/06 (GAMEACCOUNT): avoiding probability

The application in this decision related to a system used to control the movement of a game piece based upon an input by a user. This approach is intended to replace a dice-based random movement with a skill-based approach which omits randomness by providing each user with a predetermined pool of single-use movement values.

While implemented using technical means (the claim specifies a processor and monitor), it is well-established that this is not sufficient for the realisation of a technical effect. This was the case here, where the Board of Appeal found that the claims related to a technical implementation of rules for playing a game. This is because the choice of how a player moves in a game is seen as being defined only by the rules. In support of their conclusion, the Board of Appeal commented that the claimed approach would not look out of place in a set of rules for a board game. The appeal was therefore dismissed, with the application being refused for a lack of inventive step.

It is interesting to contrast this approach with T 0012/08 discussed above, in which the alternative option of using a dice roll was seen to support the technical effect argument. In contrast, here the fact that the claimed arrangement could replace a dice roll was seen to undermine the technical effect argument. The key difference is that in the nature of the proposed invention; in T 0012/08 the same probabilistic nature was retained, while in this application the probabilistic nature was replaced. In the former case, this was therefore a technical alternative rather than a change in approach to how interactions are determined.

A further point to note from this appeal is that the Board of Appeal cited a passage from the application itself in support of its finding that the invention related to game rules. The background of the invention also described game rules which appear to be comparable to the subject matter of the claims. The description therefore likely undermined the eventual arguments that were made in favour of technical effect, highlighting the importance of drafting an application with an eye on possible objections. It may be helpful to provide comments in the description which highlight particularly technical aspects of the invention or the benefits it can provide, whilst avoiding characterising the invention in less technical ways.

T 1654/09 (Microsoft): virtual machines 

This invention relates to the reservation of hardware resources of a game console for use by a system application executed separately to a game. The application was initially refused for a lack of inventive step based upon existing implementations in which multiple virtual machines (VMs) can be implemented simultaneously. As a part of the appeal proceedings, a new request was filed which specified that the system application provides network capability to the video game.

The Board of Appeal considered that the amendment provided with the new request led to a different conclusion on the patentability of the application. A key distinction was that the system application and the video game interact with one another, whereas this was not the case in the cited prior art documents and the original claim.

Reciting such an interaction in the claims introduced a clear technical consideration. It is no longer a matter of user enjoyment as to whether the different VMs are able to execute in a preferred manner, but one of functionality. This is because if the system application is not able to reliably execute, then the video game cannot function correctly. This therefore represents a technical problem of how to provide reliable access to hardware resources for co-dependent system services and applications.

The Board of Appeal found that this new distinction meant that the cited documents were no longer suitable starting points for an inventive step objection. The application was remitted back to the Examining Division for further prosecution, with a patent eventually being granted after further amendment of the claims.

T 0185/25: synchronising a live game video stream

This is a more recent decision which also emphasises that solving a technical problem associated with gameplay can lead to patentable subject matter. The claimed invention related to the synchronisation of a live game video stream and game events corresponding to a player’s actions in an online game hosted at a server. These are both received at a client device and used to generate a composite video stream in which the events are synchronised.

In this case, the Board of Appeal identified that “Synchronisation using timestamps attached to both the live video stream and game events” was a technical feature. This is because synchronisation is regarded as a technical problem to be solved, as it can overcome issues such as content being obtained from different sources or fluctuating network conditions.

Ultimately the decision to revoke the patent during opposition proceedings was maintained, with the claims seen to lack an inventive step. However, this was not due to a lack of technical character but due to obviousness with respect to a cited prior art document. As such, this decision reinforces established practice as if there had been an inventive contribution recognised for the novel features, then the patent could have been reinstated.

Summary and practical steps video game patent applications

While varied in terms of the claimed inventions, the case law does indicate a consistent approach to the examination of patent applications directed toward video game related technology. The EPO is rarely persuaded by arguments that a game is more entertaining, more engaging, more enjoyable, or more commercially attractive than previous games. Instead, the EPO is receptive to applications in which the invention addresses a technical problem through technical means.

To increase the chances of obtaining a granted patent, it may be helpful to consider the following points when drafting an application to protect aspects of a video game:

• focus on how the invention helps the user to play the game through overcoming technical limitations, not how it helps the player advance in the game;
• prepare the background of the invention to frame the invention well – avoid comparisons to excluded subject matter, whilst highlighting other technical alternatives;
• consider how a game rule is implemented at a technical level, and how this improves the game; and
• draft applications with an eye on possible objections, ensuring that there is a strong technical characterisation that can be relied upon.