Key Takeaways:

  • A game idea cannot be patented, but the mechanics, components, and unique methods of play can be.
  • Patents require novelty and non-obviousness, meaning the game must be innovative and not resemble existing games.
  • Board games, video games, and card games can be patented, but the process varies slightly depending on the type.
  • A detailed patent application should include rules, components, diagrams, and variations of play.
  • A provisional patent is a cost-effective way to protect a game concept while testing market viability.
  • Conducting a prior art search is essential to ensure a similar patent does not already exist.
  • The patent process is lengthy and expensive, often taking up to three years for approval.
  • Alternative methods of play should be included in the patent application to cover variations and expansions.
  • A game’s commercial viability should be assessed before investing in the patent process.
  • A nondisclosure agreement (NDA) can help protect your invention during the development phase.

If you're wondering how to patent a game, the first thing you need to know is that you can't patent a game idea, just as you cannot copyright an idea for a book. Some gaming developers, both the computer and board games inventors, have made significant income from their inventions, but it's not necessarily the norm.

To patent a game, you'll need a detailed design and it must meet certain criteria to ensure your concept meets the patent test. Before proceeding, it's also important to understand that there is a difference between a copyright, trademark, and a patent, all of which are available on the US Patent and Trademark Office's website.

Proceeding with a Game Patent

There are two main criteria your game has to meet:

  • Must bear no similarities.
  • Innovative in some respect

Some people believe that video game software doesn't meet the criteria for being innovative and original, but that is not necessarily the case. In addition, keeping your invention away from the public can help meet the unfamiliar requirement. Obviously, you need to test a new game prior to marketing it, but keep the test group to a very select group, like trustworthy friends or immediate family. Don't post your ideas online or somewhere else that is accessible to the general public.

It’s important to complete the following checklist when preparing your game for a patent:

  • Keep detailed documentation that includes drawings and rules for the game.
  • Build a prototype.
  • Conduct a patent search to verify no patent is already in the same field.
  • Fill out and file the United States Patent and Trademark Office's patent application.

You can opt to file a regular application, which is expensive and takes three years or file a provisional one which is cheaper and easier. However, you still have to file a full patent application at some point. The provisional one gives you the right to proceed with marketing, with the designation “patent pending.”

There are some questions you should ask yourself when deciding whether to proceed with a patent application:

  • How much will it cost? Patents are expensive, so it's important to research the costs ahead of time. You should account for more than just fees, like agent fees, prior art search, maintenance costs, and potential infringement expenses.
  • Is the time involved to apply for the patent really worth it? Because it can take years to receive a patent, you must have the dedication for the process and your game should have a long lifespan. If the game is only popular for a year, it is not necessarily worth applying.
  • Is your game idea really unique? Uniqueness is important as is commercial viability. Remember, just because you don't see a game in the stores or online, it does not mean the game never existed. This is where the prior art search is important because you can learn whether someone else has ever published or spoken about the same topic.

Understanding Patent Eligibility for Different Types of Games

Not all games qualify for patent protection. The type of game influences whether it meets the patent eligibility criteria. Here’s a breakdown:

  • Board Games – Patentable if they involve a unique set of rules, components, or a novel playing mechanism.
  • Video Games – While software itself can be copyrighted, patenting specific game mechanics, algorithms, or hardware innovations is possible.
  • Card Games – A card game’s layout, rules, and design can be patented if they introduce an innovative gameplay mechanic.
  • Augmented Reality & Virtual Reality Games – Games incorporating new VR/AR interactions, controllers, or physics mechanics can qualify for patents.

If your game primarily relies on a story or artwork, copyright protection may be a better fit than a patent.

Step-by-Step Guide to Patenting a Game

To successfully patent a game, follow these essential steps:

  1. Document Every Detail – Keep records of game rules, components, layouts, and variations.
  2. Develop a Prototype – A working prototype strengthens the patent application and proves its functionality.
  3. Conduct a Prior Art Search – Use the USPTO database to check for existing patents on similar games.
  4. Decide Between Provisional and Non-Provisional Patents:
    • Provisional Patent: Grants temporary protection and allows you to market your game with “Patent Pending” status.
    • Non-Provisional Patent: A full patent application that undergoes a detailed review before approval.
  5. Prepare the Application – Include descriptions, diagrams, claims, and alternative gameplay variations.
  6. Submit to the USPTO – File the application and pay the necessary fees.
  7. Respond to Examiner Requests – The patent office may request modifications or clarifications before approval.

A patent attorney can help streamline this process and improve your chances of approval.

Examples of the Most Iconic and Patented Games

Here is a look at some of the most iconic games which had patents issued.

  • Monopoly — Patent issued in 1935
  • Rubik's Cube — Patent granted in 1983
  • Battleship — Patented in 1935 under the title “Game Board”
  • Rock'em Sock'em Robots — Patented in 1966
  • Twister — Patented in 1969
  • Simon — Patented in 1979

Alternative Methods of Play and Patent Considerations

A strong patent application should include alternative ways the game can be played. Many famous board games have different versions to accommodate varying time limits, skill levels, or rule modifications.

For example:

  • Monopoly allows house rules to shorten game time.
  • Chess has multiple time formats like blitz or bullet chess.
  • Card games often introduce expansion packs that modify gameplay.

Including these variations in your patent application prevents competitors from slightly altering your game and claiming it as a new invention.

Things to Keep in Mind with Patents

There are some things to keep in mind with patents for games. One thing is how to prevent your game from being stolen. You don't necessarily need to worry about theft until you have created something worth stealing. A game in the earliest stages of design is not very valuable. What is valuable is a game that has gone through most of the design process, including extensive playtesting.

While it's important to keep your ideas to yourself, you will need assistance at some point. You will need playtesting. Have your testers sign a nondisclosure agreement prior to testing, but you may alienate some people who think the request is too much of a hassle.

There is some “borrowing” that goes on in the industry, and some games are better because of it. The distinction that makes it ok is when you borrow a mechanic of the game and use it in a different way. However, borrowing entire collections of mechanics could be considered theft or plagiarism. Because gamers know the market very well, people can tell if elements of a game come from an existing one.

Cost and Timeline of a Game Patent

Patents are a long-term investment, both in time and money. Here’s what to expect:

  • Filing Costs:
    • Provisional patent: ~$70–$300
    • Non-provisional patent: ~$900–$2,000
    • Legal fees (if hiring a patent attorney): $5,000–$10,000
  • Timeframe:
    • Provisional patents provide one year of protection.
    • Full patents can take 18 months to 3 years for approval.

Ongoing costs include maintenance fees at 3.5, 7.5, and 11.5 years after approval.

Before committing to a patent, consider whether your game has long-term commercial potential to justify the expense.

Frequently Asked Questions:

  1. Can I patent a board game?
    Yes, but it must include a unique mechanism, set of rules, or a new component that differentiates it from existing games.
  2. How long does a game patent last?
    A utility patent lasts 20 years, while a design patent lasts 15 years from the date of approval.
  3. Is a copyright or patent better for a game?
    A patent protects mechanics and inventions, while copyright protects artwork, stories, and character designs.
  4. Can I sell my game before getting a patent?
    Yes, but without a patent, others can copy your concept. Filing a provisional patent allows you to market your game as “patent pending.”
  5. Do I need a lawyer to patent my game?
    It’s not required, but a patent attorney can increase approval chances and ensure your application covers all necessary details.

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