Beijing Wei Chixue Law Firm--Patent Protection for Electronic Game Play Methods

Tao CHEN
Attorney-at-Law

I. Introduction

In the past two decades, China has experienced soaring development of the electronic game (or video game) market. The revenue from this market has increased from 1.32 billion yuan in 2003 to 265.884 billion yuan in 2022, with the market developing from console games to online games, and to mobile online games. Embracing such a huge market, Chinese video game enterprises have invested over a trillion yuan in R&D over the past decade and have been investing more each year. Alongside the boom of the video game industry, IP (intellectual property) protection for video games has become an issue. A number of challenges have arisen involving the form and boundaries of IP protection.

A video game is a combination of elements such as a computer program, a game name, game icons, game rules, story plots, scene maps, characters, text introductions, dialogue, voice-overs, background music, etc.^[1] These different elements can be protected in a number of ways by various IP laws and regulations, such as Patent Law, Copyright Law, Trademark Law, and Anti-Unfair Competition Law.

The Patent Law prescribes three types of invention-creations, namely invention, utility model, and design. Invention and utility model provide protections for innovative technical solutions. Technological innovations contained in video games are certainly protectable by the Patent Law. It is without doubt that the Patent Law may protect technological innovations including hardware improvement and software advancement in the fields of image processing, security, multimedia, etc. However, innovations on game play methods may be fundamentally non-technological, and it may be difficult to obtain protection for game play methods under the Patent Law. This article attempts to discuss this topic.

II. Examination Criteria

The Guidelines for Patent Examination (hereinafter referred to as “Guidelines”) do not include articles specifically for the eligibility, the novelty, and the inventiveness of a patent application relating to game play methods. However, similar to business rules and methods, game play methods are non-technological innovations. Therefore, we may refer to the special provisions of the Guidelines concerning business rules and methods. Also, we may understand the trend in patent examination for applications relating to game play methods by referring to the trend in patent examination for applications relating to business rules and methods.

The Guidelines were amended in 2017 to add that where a claim relating to a business mode includes both business rules and methods and technical features, its patentability should not be excluded under Article 25 of the Patent Law^[2]. This amendment indicates that the CNIPA has taken a more open, approving, and encouraging position towards non-technological innovations such as business rules and methods.

The Guidelines were amended again in late 2019 to add a new Section 6: “Relevant provisions for examination of patent applications for invention containing algorithm features or features of business rules and methods” in Chapter 9, Part II^[3], which specifies the examination criteria for the determination of eligibility, novelty, and inventiveness of a patent application for invention relating to business rules and methods. This amendment further reflects the open, approving, and encouraging attitude of the CNIPA towards non-technological innovations such as business rules and methods.

Although the Guidelines do not prescribe examination criteria specific to game play methods, the overall landscape of protecting and encouraging non-technological innovations makes it feasible to get patent protection for innovations involving game play methods. When considering whether a game play innovation is eligible for patent protection, we may reference the provisions for patent applications relating to business rules and methods.

Regarding the determination of eligibility of a patent application relating to business rules and methods, Section 6.1 of Chapter 9, Part II of the Guidelines prescribes that:

The examination should be carried out based on the claimed solution, i.e. the solution defined by the claim. In the examination, technical features should not be simply separated from the algorithm features or features of business rules and methods. Rather, all the contents recited in the claim should be considered as a whole to analyze the relevant technical means, the technical problem solved, and the technical effect produced.

If a claim relates to abstract algorithms or a pure business rules and methods, and does not include any technical feature, the claim shall be determined to belong to the rules and methods for mental activities prescribed by Article 25.1(2) of the Patent Law and shall not be granted a patent. If a claim includes technical features in addition to algorithm features or features of business rules and methods, the claim should not be determined as a rule or method for mental activities on the whole, and the patentability of the claim should not be excluded under Article 25.1(2) of the Patent Law.

If the claim as the whole does not fall in the circumstance prescribed by Article 25.1(2) of the Patent Law to be ineligible for a patent, examination should be carried out on whether the claim is a technical solution prescribed by Article 2.2 of the Chinese Patent Law.

In examining whether a claim containing algorithm features or features of business rules and methods is a technical solution, the examiner should take into account all of the features recited in the claim. If a claim recites a technical means under the law of nature to solve a technical problem, thus obtaining a technical effect under the law of nature, the technical solution defined by the claim belongs to a technical solution prescribed by Article 2.2 of the Chinese Patent Law.

Accordingly, if a claim of a patent application relating to a game play method only involves a game play method, the claim may not be granted a patent, as it may be determined to belong to rules and methods for mental activities. However, if the claim includes technical features in addition to the features of the game play method, the claim as a whole should not belong to the rules and methods for mental activities. Further determination may be needed as to whether it is a technical solution under Article 2.2^[4] of the Chinese Patent Law.

When determining whether a claim of a patent application relating to a game play method is a technical solution under Article 2.2 of the Chinese Patent Law, all the features recited in the claim should be taken into account. If a claim recites a technical means under the law of nature to solve a technical problem, thus obtaining a technical effect under the law of nature, the technical solution defined by the claim belongs to a technical solution prescribed by Article 2.2 of the Chinese Patent Law.

However, in a scenario where a game play method or a business rule and method is involved, often it is hard to tell if the method belongs to the law of nature or artificial laws, causing difficulty in making the determination under Article 2.2. For example, an innovative game play method may merely provide a new gaming rule and is, in that case, probably not a technological innovation. There may be no definite answer to which law of nature this technical solution uses and whether the technical effect conforms to the law of nature. Therefore, a more specific and definite determination criterion would be helpful for patent protection for innovations of game play methods for video games.

Regarding the determination of inventiveness for a patent application relating to business rules and methods, Section 6.1 of Chapter 9, Part II of the Guidelines prescribes that:

In examining inventiveness of an application for an invention patent which contains both technical features and features of algorithms or business rules and methods, the examiner should consider the technical features and the features of algorithms or business rules and methods in mutual support and interaction with the technical features as a whole. The phrase “in mutual support and interaction with the technical features” means that the features of algorithms or business rules and methods are in tight combination with the technical features and form together with the technical features a technical means for solving a technical problem, resulting in a corresponding technical effect.

Likewise, for a patent application relating to game play methods, the technical features and the features of game play methods which are in mutual support and interaction with the technical features should also be considered as a whole in the determination of inventiveness.

In patent examination, the examination of eligibility takes precedence over the examination of novelty and inventiveness. If the claims are examined for inventiveness, to some extent it can be deemed that the claims have passed the examination of eligibility. Following this logic, is it safe to say that when the technical features and the features of the game play methods in a claim are in tight combination and in mutual support and interaction and thus form an integral whole, the solution formed by the whole of the technical features and the features of the game play methods is a technical solution?

Based on this consideration, applicants may draft the claims in such a way that the technical features and the features of the game play in the claim are functionally in mutual support and interaction, forming multiple technical means that are integral combinations of the game play features and technical features. The resulting solutions should be considered to be technical solutions.

More detailed analysis will be provided below with reference to practical cases.

III. Case Introduction

1. Case 1 (ZL202010561620.8)

In existing zombie games, a player may manipulate a game character to move in a game scene and fight zombies attacking from various directions. However, in existing gaming modes, the only means for the player to fight zombies is shooting with firearms, which is relatively monotonous and lacks flexibility.

In view of the state of art, the subject patent proposes an improvement based on the thought of adding new attacking tools (or items) to video games, such as zombie games, to stun a virtual object (e.g., a zombie). The new attacking tools may include, for example, a stunning bullet, a stunning gun, a stunning knife, or a stunning grenade. This extends the functionality of attacking virtual objects and increases the flexibility and versatility in controlling virtual objects.

Granted claim 1 of the subject patent recites:

“A method for controlling a virtual object, comprising:

(1) upon detecting a game start, displaying, in a virtual scene interface, a first virtual object controlled by a user operation, and generating, at an interval of a second duration, a third number of a second virtual object controlled by a non-user operation;

(2) controlling the second virtual object to move towards the first virtual object in the virtual scene; in response to a distance between the second virtual object and the first virtual object being less than a second distance, controlling the second virtual object to attack the first virtual object;

(3) in response to the first virtual object having defeated a first number of the second virtual object, determining a second number corresponding to a type of the virtual scene, assigning the second number of a stunning weapon to the first virtual object; with a higher gaming difficulty of the virtual
scene, the first number corresponding to the virtual scene being larger and the second number being smaller, and with a lower difficulty of the virtual scene, the first number corresponding to the virtual scene being smaller and the second number being larger;

(4) in a case where the first virtual object is besieged by a plurality of the second virtual object, receiving, by the virtual scene interface, a stunning attack instruction for the first virtual object to attack at least one of the second virtual object in the virtual scene interface;

(5) in response to the stunning attack instruction, controlling the first virtual object to use the stunning weapon to attack at least one of the second virtual object in the virtual scene interface, and controlling at least one of the second virtual object to be in a stunned state and a defeat state such that the first virtual object is capable of escaping from besiege of the second virtual object, wherein when the second virtual object is in a stunned state, an attack from the first virtual object to the second virtual object is invalid; and

(6) when a duration of at least one of the second virtual object being in the stunned state and the defeat state reaches a first duration, at least one of the second virtual object is controlled to restore a normal state.”

Claim 1 of the subject patent recites how a player obtains a stunning weapon in the video game and a process of using the stunning weapon.

In step 1, in a virtual game scene, a first virtual object that is a player character is displayed, and a predetermined number of a second virtual object that is a zombie is reloaded at a predetermined duration. In step 2, the zombies move towards the player character and automatically attack the player character while approaching the player character. In step 3, if the player character hits and kills a first number of zombies, the game system will award the player with a second number of stunning weapons; the first number and the second number are associated with the game difficulty. In step 4, when a player character is surrounded by a plurality of zombies, the player operates the game interface to use the stunning weapon. In step 5, the zombies attacked by the stunning weapon are in a stunned state and a defeated state during which the player character cannot attack the zombies. In step 6, after a predetermined duration of the zombies being in the stunned state and the defeated state has elapsed, the zombies return to a normal state.

2. Case 2 (ZL202010413541.2)

In existing shooting games, a player character may place an induction mine in a virtual game scene. The induction mine will explode when an enemy player character approaches the induction mine in the game scene. As the enemy player character should not go near the induction mine, the enemy player character can only remotely detonate or destroy the induction mine through long-range shooting.

In view of the state of art, the subject patent proposes the improvement of adding a new item to shooting games, which is an interfering device that interferes with an induction mine, so that the induction mine is temporarily ineffective, thereby authentically simulating the destruction method of induction mines in practice.

Granted claim 1 of the subject patent recites:

“A method for using a virtual item, performed by a terminal, the method comprising:

(1) displaying a first user interface, the first user interface comprising a first virtual environment picture, the first virtual environment picture being a picture obtained by observing a virtual environment from a perspective of a main control virtual character, the main control virtual character having a first virtual item that is a throwing item, the first virtual environment picture including a second virtual item in an effective state, the second virtual item being a virtual mechanical unit placed by an enemy virtual character of an enemy camp in the virtual environment; the second virtual item becoming effective upon a triggering condition being satisfied after the second virtual item is placed in the virtual environment, the main control virtual character being a virtual character controlled by the terminal;

(2) in response to an instruction of use, controlling the main control virtual character to use the first virtual item;

(3) in response to the second virtual item being located in a first effective range of the first virtual item, controlling the second virtual item to switch from a first display form corresponding to the effective state to a second display form corresponding to an ineffective state;

(4) timing a first duration of the ineffective state of the second virtual item; and

(5) in response to the first duration satisfying a first time threshold, controlling the second virtual item to switch from the ineffective state to the effective state.”

The above claim 1 describes a process of a player of a shooting game interfering with induction mines.

In step 1, in a virtual game scene, a master control virtual character that is a player character has a virtual item that is an interfering device, and the game scene includes a second virtual item that is an induction mine in an effective state. In step 2, the player operates a game terminal to issue an instruction to control the player character to use the interfering device. In step 3, the interfering device is thrown to a position in the vicinity of the induction mine such that the induction mine is within the effective range of the interfering device and switches from the effective state to an ineffective state, and the display manner of the induction mine changes. For example, the induction mine in the effective state displays a special beam, while the induction mine in the ineffective state does not display the special beam. In step 4, the duration of the ineffective state of the induction mine is timed. In step 5, when the duration the ineffective state of the induction mine reaches a predetermined duration, the induction mine is restored to the effective state.

IV. Case Analysis

The inventive concepts of Cases 1 and 2 are typical innovations of game play methods of video games. During prosecution, the examiners did not question the patent eligibility but carried out examination for novelty and inventiveness. After being held to meet the requirements of novelty and inventiveness, Case 1 and 2 were granted patents. It is worth investigating why the innovations in Cases 1 and 2 were deemed eligible for patents.

1. Regarding Case 1

The innovation in Case 1 is directed to addressing the problem of monotonous attacking means for players in zombie fighting games. By adding a new attacking tool or item, i.e., a stunning weapon, it achieves the effect of improving flexibility and diversity of options for controlling virtual objects. It may be hard to conclude that this innovation is a technological improvement, if judging the innovation from the perspectives of technical problem, technical means, or technical effect. Specifically speaking, the problem of the monotonous attacking means for the players in zombie fighting games is a result of the game play method and may not be a technical problem. Adding a new item, i.e. a stunning weapon, is merely a change in the game play method, without concerning the law of nature. The addition of the new virtual game item may lead to flexibility and diversity of means for controlling virtual objects, but this effect only involves a changed user experience caused by a changed game play method, and can hardly be considered as a technical effect.

As described above, Case 1 essentially provides a new game play method in which a new attacking item is provided in zombie games to cause the attacked zombies to be in a stunned state. However, the applicant drafted a large number of technical features for the game play method. Claim 1 defines the subject matter “A method for controlling a virtual object” and defines multiple steps for controlling virtual objects during the running of the game implementing the game play method, each step including a lot of technical elements: specifically, in step 1, detecting a game start, displaying a first virtual object in a virtual scene interface, and generating a second virtual object; in step 2, controlling the second virtual object to move towards the first virtual object, and controlling the second virtual object to attack the first virtual object; in step 3, determining the number of the second virtual object hit and killed, and assigning stunning weapons to the first virtual object; in step 4, receiving a stunning attack instruction from the player; in step 5, controlling the first virtual object to use the stunning weapon, and controlling the state of the second virtual object; and in step 6, determining a duration of the stunned state and the defeated state of the second virtual object, and controlling the second virtual object to return to its normal state.

Therefore, steps 1 to 6 are technical means composed of technical features. The method for controlling a virtual object comprises these technical means and thus is certainly a technical solution.

2. Regarding Case 2

The innovation in Case 2 is directed to addressing the problem that the existing shooting games cannot simulate the actual destruction method for induction mines in practice. By adding a new game item that is an interfering device for induction mines, it achieves the effect of simulating actual destruction method for induction mines in practice. Just like Case 1, if we evaluate the innovation from the perspectives of technical problem, technical means, or technical effect, it may be hard to conclude that the innovation in Case 2 is a technological improvement. Specifically speaking, the problem that the existing shooting games cannot simulate actual destruction method for induction mines in practice is a result of the game play method and may not be a technical problem. The means of adding an interfering device to the game is merely a change in the game play method, without concerning the law of nature. The addition of the interfering device in the game may enable the game to simulate the actual destruction method for induction mines in practice. However, this effect is merely a changed user experience caused by the changed game play method, and can hardly be considered as a technical effect.

As described above, Case 2 essentially provides a new game play method in which a new item that is an interfering device capable of causing induction mines to be ineffective temporarily is provided in a shooting game. However, the applicant drafted a large number of technical features for the game play method. Claim 1 defines the subject matter “A method for using a virtual item” and defines multiple steps for controlling virtual objects during the running of the game implementing the game play method, each step including a lot of technical elements: specifically, in step 1, displaying a user interface, the user interface including a main control virtual character that is a player character, a first virtual item that is an induction mine, and a second virtual item that is an interfering device; in step 2, in response to an instruction given by the player, controlling the player character to use the first virtual item; in step 3, determining whether the second virtual item is within the effective range of the first virtual item, and controlling the display form of the second virtual item; in step 4, recording the duration of the ineffective state of the second virtual item; and in step 5, comparing the duration of the ineffective state of the second virtual item with a predetermined time threshold, and controlling the state of the second virtual item.

Therefore, steps 1 to 5 are technical means composed by technical features. The method for using a virtual object comprises these technical means and thus is certainly a technical solution.

3. Conclusion

In the above two cases, in order to obtain patent protection for game play methods, the applicants drafted the claims to define control steps run by the games implementing the game play methods and combined the contents of the game play methods with technical means of the control steps, such that each of the control steps in the claims includes technical features. In each step, the feature of the game play method and the technical features interact and are mutually supportive. Since the features of the game play and the technical features form an integral whole, they cannot be separated from each other. As a result, the steps in the claims drafted in the above manner form a technical means. An examiner would not be inclined to question the eligibility of such claims. Neither Case 1 nor Case 2 was rejected as ineligible in the substantive examination. After meeting the novelty and inventiveness criteria, the two cases received granted patents.

In view of the foregoing, the claim drafting approaches in Cases 1 and 2 provide examples for seeking patent protection for game play methods. To reflect rules or a method of game play in a claim, the claim may describe multiple control steps involved in implementing the game play method in a video game, using technical terms, and incorporate the rules or method in each of the control steps. As such, the features of the game play method and the technical features are not only combined, but also integrated as an inseparable whole.

V. Remarks

With reference to the provisions of the Guidelines and practical cases, this article discussed how to obtain patent protection for a game play method. Specifically speaking, the claims may be drafted to describe control steps involved in implementing the game play method in the video game using technical terms, thereby incorporating the method and rules in each of the control steps. As such, it is possible to effectively avoid rejections on the grounds of ineligibility and seek protection under the Chinese Patent Law for various innovations of game play methods, thereby providing a new perspective of IP protection for video games. Various aspects of video games may be protected by different IP laws from different perspectives, thereby protecting the legitimate rights of video game innovators in a practical manner, which in turn will facilitate healthy and orderly development of the video game industry.

References

[1] White Paper on Online Video Game Intellectual Property Right Protection, Copyright Society of China Online Game Affair Committee, Shanghai Jiaotong University Intellectual Property and Competition Laws Institution
[2] Announcement No. 74 of the CNIPA
[3] Announcement No. 343 of the CNIPA
[4] Article 2.2 of the Chinese Patent Law: “Invention in the Patent Law refers to any new technical solution concerning a product, process, or improvement thereof.”