Can You Patent a Game Mechanic? US, Europe, Germany

You cannot patent a game rule as such in Europe or Germany, and US courts treat rules for playing games as an abstract idea. Patents on technical ways of implementing a game can still be granted and do exist, so the lack of copyright in a mechanic tells you nothing about patents.

This page explains the rules in general. For documented cases, see patented game mechanics. Neither page says whether a specific mechanic is covered by a patent.

Does European patent law exclude game rules?

Yes, as such. Article 52(2)(c) of the European Patent Convention says that "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" are not inventions. Article 52(3) limits the exclusion to such subject matter "as such".

The EPO's Guidelines for Examination (G-II, 3.5.2) spell out what this means for video games:

• The exclusion applies to card and board games and also to gambling machines and video games.
• Game rules are abstract and purely mental (T 336/07). Evolving characters, storylines and rhythm actions also count as rules in a wider sense (T 12/08), even if they are unspoken or only revealed during play.
• A claim that specifies technical means for implementing rules has technical character, so it passes this first hurdle.
• Inventive step cannot rest on the rules themselves, however original they are, or on merely automating them. It must come from technical effects that go beyond those already inherent in the rules.
• Amusement, suspense, surprise, and balanced or fair play are psychological effects and not technical ones. Scoring and skill rating computations are usually non-technical, even when they are complex.
• Rewording a rule in technical-sounding terms does not help.

The Guidelines give examples on both sides. A networked game of chance in which drawn numbers are randomly mapped before transmission makes a technical contribution, because the scrambling secures the data transmission. Saving memory or bandwidth by simplifying the game does not, because that avoids the technical problem and does not solve it.

What does German law say?

§ 1(3) no. 3 PatG lists plans, rules and methods for mental activities, games and business, as well as computer programs, as not being inventions. Under § 1(4) that applies only if protection is sought for them as such. The wording follows the EPC.

The German Patent and Trade Mark Office describes a three-stage test from Federal Court of Justice case law for software:

1. The claim must lie in a technical field, which is a low bar.
2. It must not be excluded, so it needs instructions that solve a concrete technical problem with technical means.
3. Novelty and inventive step are assessed only on those aspects that determine or at least influence that technical solution.

A game example comes from the Federal Patent Court (19 W (pat) 15/11, 18 February 2013). It concerned determining a win on a coin-operated amusement machine. The court treated the jackpot counter and the triggering of a risk game as a rule for games, which solved no concrete technical problem, and it disregarded them for inventive step. The remaining difference was microprocessor control, which was already state of the art, so the appeal failed.

A German utility model is no way around this. § 1(2) no. 3 GebrMG has the same exclusion, and § 2 no. 3 GebrMG excludes methods altogether.

What does US law say?

US law has no list that names games. 35 U.S.C. § 101 covers new and useful processes, machines, manufactures and compositions of matter, and courts add an exception for abstract ideas.

In Alice v. CLS Bank (19 June 2014) the Supreme Court set a two-step test. First, is the claim directed to an ineligible concept such as an abstract idea? If so, does it add an inventive concept that transforms the idea into an eligible application? Merely running the idea on a generic computer is not enough.

The Federal Circuit applied this to games:

• In re Smith, 815 F.3d 816 (2016), concerned new rules for a wagering card game, which the court treated as a fundamental economic practice.
• In re Marco Guldenaar Holding, 911 F.3d 1157 (2018), concerned a dice game, and the court found the claims directed to the abstract idea of rules for playing games.

The USPTO's examining manual (MPEP § 2106.04(a)(2)) lists both cases. It treats rules for playing games as a certain method of organizing human activity. Smith did not rule out all game patents, and commentators note the court's statement that inventions in the gaming arts are not necessarily foreclosed.

Eligibility is only one hurdle. In the reexamination of Nintendo's US 12,403,397, the examiner's first action rejected all claims as obvious under 35 U.S.C. § 103, which is a different objection.

What still gets through?

• Technical implementation in Europe and Germany. The claim must solve a technical problem with technical means, as described above.
• Interactive control under technical constraints. The EPO Guidelines cite T 928/03 as an example where the way information is presented can make a technical contribution, in the interactive control of real-time manoeuvres.
• Simulations. The Guidelines treat calculated updates of a game world under physical or pseudo-physical models as computer-implemented simulation under G 1/19, assessed under the technical-effect approach for such claims.
• US claims with specific steps. Granted US patents on game systems exist, and some of them are listed in our overview of documented cases. A grant does not mean a patent would survive a challenge.

How long does a patent last?

Right	Term	Source
European patent	20 years from filing	EPC Art. 63(1)
German patent	20 years from the day after filing	§ 16 PatG
US patent	20 years from the earliest effective filing date, subject to adjustment	35 U.S.C. § 154(a)(2)
US design patent	15 years from grant	35 U.S.C. § 173
German utility model	10 years, ending with the month of the filing date	§ 23 GebrMG

A patent can end earlier if fees are not paid: in Germany annual fees are due from the third year (§ 17 PatG). A US term can run longer through patent term adjustment under 35 U.S.C. § 154(b).

The end of one patent's term says nothing about other patents or other countries. A patent applies for a limited period in the country or region where it was granted.

What should a developer take from this?

A rule that is unprotectable as such can sit inside a claim to a specific technical implementation. Whether a claim covers a particular game depends on its exact wording and on the countries where it was granted. This site does not assess that. If it matters for a product, the place to ask is a patent attorney.