Of course, these changes are not only related to the hardware; the expected omission of a disc drive in future consoles signals an embracing of the digital distribution models that have been growing significantly in recent years. While digital storefronts have been commonplace for a number of years, these have become the main method of distribution in recent years. Estimates suggest that between 60% and 90% of games are now purchased digitally (varying by platform, game, and region), which has increased sharply over time. As well as this, subscription-based models and cloud gaming have also seen a more mainstream adoption in recent years, and this trend is expected to continue in light of such hardware changes.

It is therefore clear that the gaming industry is undergoing a period of transition, and it is likely that this will be reflected in the approaches to protecting intellectual property.

Hardware changes

A disc drive is typically one of the largest components in a non-portable games console, although in recent years a separate removable disc drive has become a more common option. In either case, this represents a significant design constraint through designing a case to house the disc drive or to design a case that is able to interface with an external disc drive effectively. With the removal of this constraint, the amount of design freedom for games consoles increases significantly.

The design of a console housing typically comprises two separate aims, with a successful design managing to achieve both. The first of these is good performance, and the second is visual appeal. For instance, heat dissipation is a significant performance challenge in increasingly more powerful devices, and this is highly dependent upon the geometry of the housing. With the visual appeal, this is an important aspect as non-portable games consoles often take centre stage in their owner’s living rooms.

The pursuit of the first of these aims may be the source of a number of patent filings, such as generating a housing which offers robust protection for the components inside whilst also providing good airflow for heat dissipation. Other patentable aspects include designs which offer improved protection against dust ingress or noise reduction. By omitting a large component which necessarily interfaces with the housing surface, the amount of design freedom is increased significantly. As a result, the scope for technical innovation regarding the housing design may be reduced. For instance, removing a disc drive can increase airflow within a given housing, while a housing comprising fewer components necessarily has a simplified internal airflow.

The pursuit of the second of these aims typically offers less scope for patent protection, as typically aesthetic features will lack the technical character to be subject to patent protection. The reduced constraints resulting from omitting a disc drive may lead to a significant increase in design freedom – both in terms of the size and shape of devices. This may increase the scope for a console to have a unique design that distinguishes it from other devices. Accordingly, it may be the case that we see an increasing use of design rights rather than patents to protect the shape of consoles going forwards.

Software changes

One of the potential issues for consumers when moving to digital-only game libraries is that of ensuring access to their games on-demand. Recent high-profile server outages have prevented users from accessing their games, even those which are locally downloaded, in a scenario that was not envisaged when physical games were the predominant model. Some games or platforms are more resilient than others to such issues. For instance, those in which offline play is enabled after an initial online verification, or approaches with a physical authentication paired with the digital distribution of the game content itself (such as the Nintendo Switch’s game-key cartridges). The corresponding challenge for distributors is that of digital rights management. Without any authentication it becomes much more challenging to control the distribution of games, and so there may be a desire to maintain control over the use of a player’s digital library.

It is therefore expected that the intersection of these competing concerns may be the source of increasing innovation and patent filings as the digital distribution model becomes even more prevalent.

Other aspects of the switch to entirely digital distribution can also be expected to lead to patentable innovation. For instance, by storing game data on a hard drive rather than on an external disc the storage burden upon a device is increased. This is becoming particularly noticeable for some users as the size of AAA games increases substantially, meaning that fewer games can be stored locally. While the amount of storage a console provides may be increased, this comes at a cost and only delays the issue rather than solving it. Therefore it is likely that improvements will be sought to the way in which game data is stored or accessed, changing the operation of consoles through software innovation.

Off-console changes

It can be expected that there will be increasing development in off-console areas, such as server systems to support cloud gaming and digital content distribution. Innovations may be found in a number of different aspects of these systems, such as reducing latency, increasing data and processing efficiency, and managing server loads effectively. While there is scope for hardware improvements to manage this, it can be expected that software and content coding-based solutions will also have a place.

For instance, cloud gaming and new downloads may peak in a given geographical region based upon school and work finishing times, requiring significant computing power at those times. However, that computing power may be significantly underutilised during the working day or overnight as player counts drop in that region. Managing this disparity is a significant technical and business challenge, particularly as computer component costs (such as RAM) have increased. 
In terms of game distribution, compression techniques or otherwise reducing the amount of information that is required to be transmitted (or at least varying the timing) can be good sources of technical improvements. Similarly, efficient management of edge servers, server racks, or other hardware can also lead to patentable inventions.

Such challenges are technical in nature, which offers significant scope for additional patent activity beyond the user’s living room.

Looking further into the future 

While the above considers a shorter-term view of where patent protection may be found with changes to game distribution models, in the longer term there may be even more significant changes.

For instance, as access to increasingly higher-quality (in terms of both speed and latency) internet connections expands it is reasonable to consider whether a user without a physical games library requires a dedicated games console. Instead, cloud gaming may become the go-to method for gaming rather than local processing, thereby removing the need for a dedicated console. In such a scenario the quality of the cloud gaming service becomes even more important. This is likely to drive software-based innovation in particular, for instance to reduce or otherwise mask latency (for example, through predictive methods), or to improve coding efficiency to enable reduced bandwidth and/or improved visual quality.

Another change in the industry, separate to the shift to digital distribution, is that of increasing interest in portable gaming devices. This has been driven by a number of factors, such as hardware advances which allow for a smaller device to provide a more complete gaming experience than previously possible. Such devices may be slower to adapt to the changes described above, as often a stable and low-latency network connection is not available when a user is gaming away from home, which makes cloud gaming a less attractive option. Of course, portable gaming also comes with its own technical challenges, such as managing battery consumption versus performance, and therefore offers its own scope for innovation.

What this means for gaming patents

It can be expected that the abandoning of physical media will lead to a different approach to patent protection for a platform, leaning more towards software than hardware for the core device and user experience (while the approach to protecting peripherals is unlikely to change). This may be related to the processing and transmission of data in an effective and efficient manner by a server, for instance. From a patenting perspective, this represents a significant change due to the different ways in which hardware and software inventions are treated at different patent offices.

Typically the European Patent Office (EPO) is quite receptive to computer-implemented inventions (such as software), offering a clear framework for patentability. While computer programs are excluded from patentability “as such”, there are exceptions if a technical effect resulting from the use of the program is able to be identified. This technical effect must extend beyond the effects associated with the computer running software generally, such as the presence of hardware or the circulation of electrical currents in the hardware. Examples of technical effects provided by the EPO include controlling an anti-lock braking system in a car, determining emissions by an X-ray device, compressing video, restoring a distorted digital image, or encrypting electronic communications. This has allowed a large number of patents for computer-implemented inventions to be obtained in the field of computer gaming, for instance for upscaling of images or the reduction of the effects of input latency.

In contrast, obtaining protection directly at the United Kingdom Intellectual Property Office (UKIPO) has traditionally been rather more challenging due to a difference in approach. The analysis at the UKIPO often led to objections for a lack of patentable subject matter when considering an application relating to computer-implemented inventions in the field of video games, even if technical effects were identified in the application.

However, the decision of the Supreme Court in February of this year (Comptroller-General of Patents, Designs and Trade Marks v Emotional Perception AI, [2024] EWCA Civ 825) has led to a change of practice at the UKIPO. This decision centred on the prosecution of an application for an artificial neural network, with a more detailed analysis found in our recent article “Artificial neural networks are programs for a computer: UK Supreme Court revisits boundaries of AI patentability”.

In this decision, it was indicated that the UKIPO should apply the EPO’s approach to computer-implemented inventions. This is expected to significantly reduce the number of excluded matter objections that software applications encounter, although some applications may simply face a corresponding inventive step objection instead if the distinguishing feature is lacking in technical character. One significant positive is an expected increase in alignment with the EPO, so that a more predictable outcome for applicants can be realised.

The decision therefore comes at a good time for the gaming industry, as this is expected to increase the availability of a UK patent for this subject matter without being required to navigate prosecution at the EPO.

Summary

As the gaming industry takes another step closer to a digital-only distribution model, it can be expected that this increases the proportion of software-based patents that are filed with respect to hardware-based patents. This comes at a good time for applicants with an interest in seeking UK protection, as recent case law is expected to lead to an improved likelihood of being able to prosecute software applications to grant. This is particularly welcome news in that the UK represents one of the largest markets for games in the world, and it is still a rapidly growing sector.