Much hard work and many long nights have gone into your awesome video game. Knowing what you know about the industry, you will understand that piracy and sales of counterfeit products are a real drag and can jeopardise your livelihood and reputation. An effective IP strategy is integral to the success of your video game. We looked at copyright and trademarks in the first article of this series. Let’s now go through patents and trade secrets and see how they apply.

Patents

Where copyright protects the expression of the idea, you can think of a patent as protecting the idea itself. A patent is something that you usually take out for an invention. An invention can be a device, process, substance, or method. When you apply for a patent, you need to prove that your invention is novel and inventive because the patenting regulations can be pretty rigorous. A patent provides that you are the owner of the invention, with the exclusive rights to market this patent to generate income for yourself or your business. By registering your patent, you stop competitors from producing or selling your invention without your authorisation for a set period of time. One of the things you can do is licence the manufacturing of your invention to someone else who might be better placed to bring your invention to market. You would receive a fee in return for this licence so naturally if you have a patent in place, your video game will be a more attractive investment for potential licensees.

In the world of video games, you could take a patent out for game-play techniques, graphics techniques, user interface artworks, handheld controller devices and many more aspects. A patent includes a description of the invention and the bounds of it. Describing these limits is an important exercise because this will be the source of your rights as the patent holder if your patent is granted. Defining the bounds too narrowly can mean that competitors can make slight adjustments to your invention and not infringe your patent. If the bounds are drawn too widely, your application may end up being rejected because it could be seen as trying to patent something that is already in the public knowledge or very obvious.

Because a patent effectively gives you a monopoly for the duration of the patent, a patent application is a lengthy, complicated process. It may not be suitable for a one off game, but perhaps it might be more appropriate if you intend to develop a few different instalments of the game or numerous levels or stages. It is crucial to enlist the services of a patent attorney or IP lawyer to assist you.

Confidential information and trade secrets

Often video game developers do not actually have the resources to manufacture the video game and bring it to market, as it can cost hundreds of thousands of dollars. It might be that seeking funding from investors to manufacture your game, or selling your video game to an already established manufacturer is the way to go. To achieve this, you will need to shop your video game around, and this process will inevitably involve showing your video game or the idea behind it to potential investors and manufacturers. Most people you disclose your game or idea to will hopefully have the good sense not to make use of the information if they decide against investing or getting into a business relationship with you. This is not always the case so the law can protect you if your information is used without your authorisation.

The law of confidential information is basically as the name suggests – it is all about information that you keep secret and you can require others to keep it confidential and not use it. The purported confidential information must be identifiable, have some form of originality and be communicated in circumstances where there is an obligation of confidence. Your video game or concept should meet these requirements. If someone uses your confidential information without your authorisation, they have committed a breach of confidence. If you can show that you have made efforts to keep the information confidential, and have communicated that disclosure or use of the information would be detrimental, you can sue for breach of confidence.

The most effective and sure way to formalise the obligation of confidentiality on the parties to which you will disclose your video game or concept is to ask them to enter into a confidentiality agreement. It’s best to have it signed before you disclose your information and you should seek legal advice when drawing up this agreement.

Another type of confidential information is a trade secret. This is where the information is of a type that can give a business a unique commercial or competitive advantage over another. In the video gaming world, a trade secret can be, among other things, the underlying source code, storylines and character ideas. So even after you enter into a confidentiality agreement to have the initial discussions and proceed with the manufacturing process, the obligation of confidentiality must apply to everyone involved in the manufacturing process. Usually, this is covered off by the employee and contractor agreements of people who work for the manufacturer. A contract will govern any parts of the manufacturing process that are outsourced, and it will almost always cover confidential information and trade secrets.

Conclusion

Having a comprehensive IP strategy is just as effective and valuable for commercial and reputational success as an intelligent marketing strategy. As a video game creator, you probably just want to get on with developing your game on a creative front, and while this is essential to the look and feel of the game, the IP protections you have in place can be the all-important backbone to the game and really contribute to its (and your) commercial success.

For an obligation-free consultation with an IP lawyer, get in touch with LegalVision. We provide all clients with a set completion time, clear scope of work and, of course, a fixed-fee quote.

Next Steps

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