Key Takeaways

  • Board game patents protect the mechanics and processes of a game, while design patents cover ornamental aspects.
  • To qualify for a patent, a board game must be novel, useful, and non-obvious.
  • Copyrights protect visual elements like artwork and rulebooks but not game mechanics.
  • Patent searches are crucial before filing to ensure originality and avoid legal conflicts.
  • Provisional patents offer early protection before filing a full utility patent.
  • Patent application requirements include detailed descriptions, claims, and illustrations.
  • Consulting a patent attorney can streamline the process and increase approval chances.

Board Game Patents

A board game patent is a legal protection for a board game used to help prevent others from profiting illicitly from your work. By patenting your game, you make it illegal for others to simply resell your idea under their own label without seeking your permission. Along with copyright and trademark, the patent is one of the major protections for original work used by creators.

Of the three major protective instruments, the patent is arguably the most difficult to grasp. A patent covers an “invention,” a broad category covering both physical objects and more abstract methods. Patents definitely cover processes, and since board games are at an innermost level processes for entertainment, they are eminently patentable, so long as they meet the general requirements for patentability.

Why Patent a Board Game?

Protecting a board game through a patent ensures that competitors cannot copy or profit from your unique mechanics. Unlike copyrights and trademarks, which safeguard branding and artwork, patents protect the gameplay itself. If your game introduces a new method of play, scoring system, or interactive feature, a patent can give you exclusive rights for up to 20 years.

Benefits of patenting a board game include:

  • Legal protection against copycats and unauthorized reproductions.
  • Exclusive commercial rights to manufacture, sell, or license the game.
  • Increased market value when seeking investors or publishing deals.
  • Potential for licensing to other game developers.

What Do You Need

The general requirements for patentability in a board game are threefold:

  • The board game must be novel.
  • The board game must be useful.
  • The board game must be non-obvious.

Breaking down these specific requirements gets a little more complicated.

To start with, the novelty requirement ensures the game is not just a mindless copy of something else already released or a boldfaced attempt to add legal protection to a common folk game. You can prevent unintentional similarity to other works through a patent search, best carried out by those experienced in the field.

The usefulness of a board game is defined by what it intends to accomplish. Most board games intend to entertain their players, though some also have educational aspirations. Since these aspects are usually apparent in the game's design, this test is perhaps the easiest for a board game to meet.

The obviousness test requires a game to not simply serve as a slight variant on something already on the market. Adding on a slight mechanical or thematic twist to an existing property isn't a very useful change, and patent protections intended to encourage inventiveness, will not apply in those cases.

Patent Searches: Ensuring Your Game is Original

Before applying for a patent, conduct a patent search to ensure your game does not infringe on existing patents. The United States Patent and Trademark Office (USPTO) provides databases for checking prior board game patents.

Steps to conduct a patent search:

  1. Use keyword searches related to game mechanics, board layouts, and scoring methods.
  2. Review patent classifications for board games and interactive play.
  3. Analyze similar patents to determine if your game is sufficiently unique.
  4. Consult a patent attorney for a professional review of potential conflicts.

Skipping this step can lead to costly rejections or legal disputes if another game has already claimed similar mechanics.

Design Patents

One arguable exception to the obviousness requirement is the design patent. This is a patent on the ornamental pieces of the game. For instance, reskinning an existing game such as Risk to include pieces based on media properties can result in a design patent, though the patent holders of the original Risk game might object to the mechanics. This allows for protection of art assets separately from other game components.

Provisional vs. Non-Provisional Patents for Board Games

A provisional patent allows you to establish an early filing date for your game without submitting a full utility patent application. This provides one year to refine your design and assess market viability before filing a non-provisional patent.

  • Provisional Patent
    • Easier and cheaper to file.
    • Establishes priority for a future utility patent.
    • Must be converted into a non-provisional patent within 12 months.
  • Non-Provisional Patent
    • Requires detailed descriptions, claims, and illustrations.
    • Subject to examination and approval by the USPTO.
    • Grants exclusive rights for up to 20 years.

If you plan to market your game while securing protection, a provisional patent is a smart first step.

Copyrights and Board Games

In stark contrast to the usefulness of patents in protecting a game, copyrights provide almost no protection for a board game. While you can set forward designed elements of the game as trademarked brand identity, a copyright cannot apply to a system. This is a difficulty for board games; where most works of art can claim copyright protection from the moment of offer to the public, board games need to work through the patent process to fend off plagiarists. The only arguably copyrightable portion of a board game would be the rules text or artwork on the board, not the mechanical core that drives the system.

Trademark Protection for Board Games

While copyrights cover visual designs, logos, and written materials, trademarks protect the name and brand identity of a board game.

Trademarking your board game name prevents others from using confusingly similar titles and strengthens your brand. Key benefits include:

  • Exclusive rights to the game’s name and logo.
  • Legal grounds to challenge counterfeit versions.
  • Enhanced credibility with retailers and publishers.

A trademark is particularly useful when expanding a game franchise into merchandise, sequels, or digital adaptations.

The Application

When preparing a patent application, you'll need to include several elements. First, you'll need an abstract to sum up what the game is. In this section, you'll want to give a brief description of the game itself, both in rules terms and physical terms. You can talk a bit about the purpose of the game, but don't get bogged down in making a pitch for its originality or utility here; the abstract needs to provide a short summary, not a protracted argument.

The next section is the description, where you present a more detailed look at the game. You will probably want to include illustrations of what the game will look like here so that the office has a better idea of what you are making. Beyond that, a complete set of rules for the game and description of the world it takes place in should go in there as well. Perhaps you can even include a set of gameplay variants to make the game more versatile. Basically, the patent office needs you to provide all the relevant information and being more transparent will always be better than missing something. An attorney can help you figure out exactly what you need here.

Filing a Board Game Patent: Step-by-Step Process

To file a patent for a board game, follow these key steps:

  1. Prepare Detailed Documentation
    • Describe the rules, objectives, and gameplay mechanics in full detail.
    • Provide illustrations or diagrams of the game components.
  2. Draft Patent Claims
    • Clearly define what aspects of your game are new and unique.
    • Differentiate from existing patents with specific gameplay elements.
  3. File a Provisional or Non-Provisional Patent
    • If still developing the game, file a provisional patent first.
    • Submit a non-provisional patent for long-term protection.
  4. Undergo USPTO Review
    • The patent examiner assesses whether your game meets novelty and non-obviousness criteria.
    • Expect requests for clarification or modifications.
  5. Receive Approval or Respond to Rejections
    • If approved, you gain exclusive rights for up to 20 years.
    • If rejected, you can modify your application and resubmit.

Since patent law is complex, working with an UpCounsel attorney can streamline the process.

Frequently Asked Questions

  1. Can I patent a board game if it's similar to another game?
    Yes, as long as your game introduces a novel, non-obvious mechanic that differentiates it from existing games. Minor changes to themes or artwork are not enough for patent approval.
  2. How much does it cost to patent a board game?
    The cost varies, but filing a provisional patent typically ranges from $70 to $300, while a full utility patent can cost $5,000 to $15,000, including legal fees.
  3. How long does a board game patent last?
    A utility patent lasts 20 years, while a design patent lasts 15 years from the date of approval.
  4. What is the difference between a copyright and a patent for a board game?
    A copyright protects artwork, written materials, and visual design, while a patent protects the game’s mechanics and rules.
  5. Can I sell my board game idea without a patent?
    Yes, but without a patent, your game mechanics are not legally protected. You may consider using non-disclosure agreements (NDAs) when pitching to companies.

If you need help with your board game patents, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.