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 like 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 is 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 familiarities
  • 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 a 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 very expensive, so it's important to research the cost 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.

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

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 heavy 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.

If you need help with how to patent a game, 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, Stripe, and Twilio.