Hearing the news on January 10th of NINTENDO’s filing of a patent suit against COLOPL’s “Colopl RUNE STORY” (Shiro-Neko Project) helped me to switch my brain from holiday mode to work mode (was it just me?).
After the news broke, what appeared on the internet was not limited to the anxious voices of users and fans who were uncertain about the continued operation of the game, but also poor opinions of the exercising of patent rights, and opinions which seemed to misunderstand the patent system itself. As this situation struck me as a little odd, I decided to look into the past and do a bit of investigation into the relationship between the gaming industry and patents (intellectual property rights). Many people may mistakenly believe that “games don’t be covered by patents”, or “games are protected by copyright laws, right?”, but in fact, the gaming industry has a long history of putting intellectual property rights, and patents in particular, to use.
From the “Colopl RUNE STORY” (Shiro-Neko Project) Official Website
■The 1970s and 1980s: The Era of Arcades, PCs, and Video Games
With its debut in 1978, “Space Invaders” became a massive social phenomenon, and many unscrupulous gaming machines, having copied the program’s source code and only altered a few details, existed on the market. If this happened today, patent infringement could be asserted, however, at the time, patent culture did not exist when it came to games, and it was quite difficult to prevent the copying. Meanwhile, in 1984, NAMCO successfully sued a shop that was using an illegal copy of gaming machine “Pac-Man” for copyright infringement, asserting that games were also a type of movie screening. (Case No. 1981(Wa)8371, Tokyo District Court, Case of Compensation for Damages). From this point forward, assertions of copyright infringement became established within lawsuits related to games, however, at this point in time, patent rights were not yet being used.
■The 1990s: The 16–32-Bit Era, Moving from Bitmaps to Polygonal Representation
With the appearance of gaming systems such as “Super Famicom”,”Sega Saturn”, and “Play Station”, this era saw an increase in the complexity and quality of the graphics and storylines of games. Patent applications related to games saw a rapid increase from the early Nineties (Please refer to Figure #1). The content of these patents was largely related to technologies involved with input devices such as joystick or controller, technologies related to ROM cartridge memory devices, technologies related to high-speed image processing and the generation of realistic images, and other technologies (hardware) used in the creation and control of gaming systems.
Figure #1: Changes in the Number of Patent Applications Involving Game-Related Technologies within Japan （Search Formula / IPC：A63F9/22）
Additionally, while there were many reasons behind the rapid increase in the number of patent applications in this era, it seems that one of the factors was related to the patent cases launched by American game manufacturers and non-corporate inventors. One famous incident is the case of SEGA vs. Coyle (a non-corporate inventor). This case was filed due to a SEGA gaming system infringing on an American patent held by Mr. Coyle related to image display technology. It resulted in SEGA losing the case and paying billions of yen in a settlement. It is said that many Japanese companies, SEGA included, had their awareness of patents increased due to this case. In addition to this incident, the Japanese gaming industry experienced a number of conflicts with American companies and seemed to come to realize the importance of patents.
Also, by late 1990s, patent suits between Japanese game manufacturers became more active. It is believed that this is due to the rise of new game manufacturers that accompanied the development and expansion of the gaming industry. As one of these companies, KONAMI, made use of its intellectual property rights as one of its management strategies, a situation arose where they were in conflict over patents with manufacturers that had been ahead of them in commercial-use gaming systems. In the meantime, it seems that in the background, the trend in popular games was shifting from “fighting games” to “music games”. Riding the popularity of the “music game” genre, several manufacturers created a variety of types of games. As these “music games” involved playing along with the progression of a song, several highly similar games tended to be created, leading to an explosion in the number of patent suits being filed between companies. However, as game manufacturers at the time were conscious of the patent rights of other companies, they came up with new ideas to avoid these technologies, which led to each company releasing highly original “music games”, and which I feel contributed to the development of the “music game” market. I believe that this effort by various manufacturers to develop games “while respecting each other’s patent rights” led to us being gifted with such games as “PaRappa the Rapper” which could be called the father of all music games, the subsequent arcade games ”Beat mania, “Taiko Drum Master”, and games such as “Hatsune Miku-Project DIVA” and other wonderful titles in the “music game” genre that continue to be released to this day.
For reference, Figure #2 shows the changes in the number of patent applications submitted by KONAMI and Sega at the time. You can see that KONAMI filed a great number of patent applications after 1999 and the era of “music game” patent lawsuits.
Figure #2: Changes in the Number of Patent Applications by SEGA and KONAMI
■The 2000s: The Era of Transition to Network and Portable Gaming Systems
As the internet becomes common, gaming started to expand from stationary gaming systems to portable gaming systems. Also, games which were played by using the features of mobile phones, or mobile games, advanced rapidly along with the development of smartphones and tablets. Meanwhile, GREE, which provides social games for mobile phones, sued DeNA over similarities that their game “Fishing Game Town 2”, shared with GREE’s “Fishing★Star”. However, as neither company held the patent rights at the time, they were forced to sue over reasons such as copyright infringement, as it had been in the past. As a result, this conflict became one where the outcome could not easily be predicted, and in the end GREE’s claim of copyright infringement was not recognized (Case No. 2012(Ne)10027, Intellectual Property High Court, Appeal Case of Seeking Injunction, etc., against Copyright Infringement). If either party had held the patent rights, it would have been a clearer dispute. Since social games were experiencing rapid expansion in the market, at that time the most important thing could be to develop games with speed, and little mind was being paid to the acquisition of patents. As I mentioned earlier, in the development process of commercial and home-use game systems, long-standing major manufacturers had conducted their development while being conscious of other companies’ copyrights and patents. However, it seems that many of the new manufacturers which had emerged in the network era did not feel the importance of patents at the time. In fact, after this incident, both GREE and DeNA quickly increased the number of patents they applied for (Please refer to Figure #3).
After that, along with the further popularization of smartphones, games that made use of touch panels and drag controls have also become widespread. It was at this point in time that SEGA filed a patent infringement lawsuit against LEVEL-5, claiming that their game “Inazuma Eleven” was using SEGA’s touch panel-based character movement technology. This case is similar to the GREE vs. DeNA case I spoke of earlier, but in this instance, LEVEL-5 did not hold any patent rights, while SEGA did. This put LEVEL-5 in a very disadvantageous position. I think that if LEVEL-5 had held a patent right against SEGA that patent (Counter Patent) could have been used to negotiate and influence the amount at the time of settlement.
Figure #3: Changes in the Number of Patent Applications by GREE, DeNA, COLOPL
Certainly, by just continuing to sue over patents, the opinion that “free development becomes impossible!”, and the possibility that the industry itself could become exhausted, do exist. But what would happen if a great idea or technology from a game that was developed through earnest effort at a certain company and become a hit, was simply copied (imitated) by another? I think that the next time, investing in development would be seen as foolish and interesting games would not be created. If that occurred, every company would only start to offer similar games, which gradually the user base would grow tired of and the gaming industry itself may even start to decline. The purpose of the patent system is the “development of industry”. It gives people, who have invested in development to create a new technology, exclusive rights over said technology for a certain amount of time, while, through making the technology public, it spurs on further technological innovation, and develops industry. The game industry is changing from the hardware-centric pre-2000s era, to one centered around IT technologies. I think that a characteristic of these IT technologies is that they can enter a business with just a single idea, without a need for too much capital investment. I think that it is especially important in times such as these that we actively protect ideas and make good use of the patent system. Within the system, there is no difference between a major company with a long history, and an emerging or newly entered company. Through respecting each other’s rights, and creating new technologies and values, I believe that the game industry will develop as well. I think that COLOPL is also one of the emerging companies in the new era, but I think that they have a high level of awareness concerning patents, and they are actively applying for them (Please refer to Figure #4). I do not know if the patent they currently hold has content that can hold up against NINTENDO, but I will be watching how the proceedings develop with great interest.
(Article by: Yasuyuki Okawara)
Fields Research Institute (FRI) conducts research in entertainment.
This article was written by a member of FRI, through the original coverage of his/her interests observed in their daily lives.