Unconventional Warfare Wargame – Patents in Board Gaming

Earlier this year, the United States Patent and Trademark Office (USPTO) issued a patent to the United States Naval Post Graduate School in Monterey, California, for an “Unconventional Warfare Wargame”. US 20190247741 A1 – Arias Et. Al (can be downloaded here). News of the patent caused a small stir in the board game and wargaming community, due largely in part to the patented game's similarity to the very popular Settlers of Catan.

I thought this would be a great opportunity to outline some of the basics of Intellectual Property rights in the board gaming community and my opinions on the patent.

Intellectual Property Rights for Board Game Publishers and Designers

For publishers in the board game, tabletop roleplaying, and miniature wargaming communities, there are broadly three categories of intellectual property that are of interest: Trademarks, Copyrights, and Patents.

There is some slight overlap, but each category protects certain aspects of a product or game, and you may generally think of them as follows:

Trademarks – A trademark protects you or your product’s goodwill and customer impression. When phrases, logos, or any other “signature” is associated with your company, it is something that you would apply for a trademark registration. In other words, you want trademark protection over aspects of your game or company that act as “Source Identifiers”. For example, the twin golden arches that make up the M in McDonald's: if you saw a food product bearing the signature golden arches, a customer would know, without being explicitly told, that the product was a McDonald's product because the golden arches have become synonymous to McDonald

Copyrights – Copyright protection applies to any creative aspect of your game or product. While ideas and facts cannot be protected with copyright law, copyright law does protect the tangible expression of those ideas. For example, the abstract fantasy tropes that are referred to in the Dungeons and Dragons Player’s Handbook cannot be protected because they comprise the underlying ideas, however,  Faerûn in Forgotten Realms would be as the expression of those fantasy tropes.

Generally, the level of creativity necessary to receive copyright protection is low, but the breadth of protection is directly proportional to the level of creativity. A rulebook is eligible for copyright. However, because of the lack of substantial creative input, it may only receive protection for the arrangements of the sections and the specific words used. Contrast this to a graphic or character where much more creative input is used.

Patents – Patents generally protect “inventions” and would apply to the structural, mechanical, or procedural aspects of a game or product. Under the law, a patent can be granted to any “process, machine, manufacture, or composition of matter, or any new and useful improvement thereof…” granted that it is new and non-obvious

Patents are the rarest form of IP in the tabletop community, and consequently, the least well understood. Can a publisher or designer get a patent on their board game? The answer, as with many legal questions, is it depends. If there are any mechanics or components of your game or product that qualifies as a process, machine, manufacture, or improvement thereof, you might be able to get a patent on it. Categorically there is no reason why a board game cannot be subject to a patent, or even multiple patents, and it may be easier to determine whether a game is eligible for patent protection by breaking the game down. In general, we can expect the game to comprise the rules, maybe some cards, maybe a game board, and maybe some other physical gameplay components.

Ordinary cards or game boards are likely not eligible for a patent because they lack the novelty (newness) required for a patent. However, if there was something innovative about the cards or boards, it may be possible to get a patent.

In terms of game rules, things get a little complicated. First off, game rules are in essence just a long and complicated process, and a process is subject matter eligible for patenting under US patent law. While a process is a patent-eligible subject matter, there is an exception for processes that are abstract. So while, game rules can be viewed as a process, unless the rules can be framed as something more than a process for determining a winner, it likely would not be able to pass examination.

Game components are likely where a game is most likely to have strong patent protection. A dice tower, for example, would likely have been eligible for a patent; not the process of rolling or tossing the dice, but rather the actual structure of the dice tower that causes the dice to tumble as they fall through it. The game Ker Plunk! was likely covered by a patent.

The ultimate determination of whether or not a patent will be granted to a game or product is going to depend on the patent “claims”; where the inventor expresses the breadth of his or her invention, and what he owns. While we begin to explain what a patent claim is, it may be useful to turn to the Unconventional Warfare Wargame patent.

Unconventional Warfare Wargame

When the news of the Unconventional Warfare Wargame came out over the weekend, there was a very prominent comment: “Somebody filed a patent for Catan” “How did they get their patent when it’s the same as Catan”. Addressing the elephant in the room: The figure prominently placed on the first page of the patent is a Settlers of Catan board! From the modular hexagons all the way down to how the sea tiles attach to build the border.

Patent US 8.403,327 B2 for a Ker Plunk! type game.

Unconventional Warfare Wargame featuring a Settlers of Catan inspired board.

So how did the applicants get the patent allowed if it’s using the Settlers of Catan game board? While the game board is inarguable the same as the game board in Settlers of Catan, the games are not the same. If we look to Fig. 6, the applicants lay out the typical turn process in their game. Immediately, we see that how the turns play out, and subsequently, the game plays out, is very different.

While the game board is taken from Settlers of Catan, that alone would not prevent the patent from being allowed and issued. Settlers of Catan, and any other game that existed prior to the filing of this application is what is known as “Prior Art” in the patent law industry. As alluded to previously, the heart of the patent application is the patent claims. The patent claims appear at the end of the patent application, always begin: “What is claimed is:”, and contains a numbered list of things covered by the patent. The Navy’s wargame patent as 20 claims, or twenty different things that the patent purports to cover. When the patent application is examined, the patent examiner compares these claims to the “prior art” and checks whether any of the claims are wholly included in the prior art, or are obvious combinations of one or more pieces of the prior art.

Let’s now turn to the first claim of the Navy’s patent.

“1. A board game for simulating unconventional warfare

comprising:

a plurality of hexagonal territory board pieces that each represent a territory in an unconventional warfare scenario;

a plurality of resource production unit markers that are each placed on a corresponding territory piece of the plurality of hexagonal territory board pieces, each resource production unit marker representing a number of the resource production units that can be collected from the corresponding territory piece during each turn of the unconventional warfare scenario;

a plurality of infrastructure markers that each represent a different infrastructure type in the unconventional warfare scenario, each different infrastructure type having an investment cost paid to initially create the corresponding infrastructure type in the unconventional warfare scenario and a maintenance cost paid during a maintenance phase of each turn during the unconventional warfare scenario, the plurality of infrastructure markers comprising:

a plurality of base markers that are each placed at a base intersection of a corresponding territory piece, each of the base markers enabling a corresponding player of a plurality of players to collect double the resource production units that corresponds to resource production unit markers of the corresponding territory pieces and enabling the corresponding player to build a military unit that is represented by a military unit marker of a plurality of military unit markers;

a plurality of population influence markers that are each placed at an influence intersection of a corresponding territory piece, each population influence marker enabling the corresponding player of the plurality of players to collect the resource production units that corresponds to resource production unit markers of the corresponding territory pieces and enabling the corresponding player to conduct influence attacks on neighboring infrastructure of another player of the plurality of players; and

the plurality of military unit markers that are each placed at a military intersection of a corresponding territory piece, each military unit marker enabling the corresponding player to conduct military attacks on the neighboring infrastructure of another player of the plurality of players.

So, for Settlers of Catan to disqualify the Navy’s patent application, each of those six long paragraphs that make up claim 1 must be contained in Settlers of Catan. Settlers of Catan has the hexagonal boards, and resource production units (settlements and cities), but appears to lack the infrastructure markers. I am not going to claim that influence markers, military units, and base markers, as described in the Navy’s patent do not exist in other games or that the Navy’s game is novel or innovative. I wanted to highlight how the Navy’s Patent could exist alongside Settlers of Catan.”

Why the Patent is Bad

Now I am going lay out some of my issues and complaints about the Navy’s patent, and why I think the patent is weak. These criticisms are not meant in any way to demean or insult either of the designers or patent attorneys who worked on the application.

In order to obtain a patent, the patent claims need to be specific enough so that they are not disclosed in the prior art. However, the generality is also what determines if an accused infringer has violated the patent. For somebody to infringe on a patent, the accused product must satisfy each element of a claim. Turning to the Navy’s patent, in order to enforce claim 1 against a competing product, the competing product must contain at least all six of those long paragraphs. Claim 1 is unnecessarily specific. The inclusion of the hexagonal territory board pieces is especially unnecessary. If the Navy is able to publish this game, and it is a hit, I would be able to produce a nearly identical game, using square, or pentagonal territory tiles, and the Navy, or their publisher, would not be able to stop me, because the Navy’s patent only applies to games with hexagonal territory board pieces!

The specificity of the claims in the Navy’s patent is particularly surprising due to the fact that the Navy’s patent application was never rejected. For those who are experienced or versed in the patent application process, you will know that it is usually not a quick process, and likely your application is going to get rejected at least once because the claims are too broad. In fact, generally, you want your application to be rejected for this reason. Broad claim language is preferable, as it affords you the most protection, and there is no reason to narrow your claims more than you need to. Having a patent application issued without getting a rejection is like having a seedy used car dealer take your first offer on a car. You probably paid too much. It would have been preferable for the Navy’s patent application to contain very broad and general patent claims, and then only narrow the claim scope once the examiner rejected the claims and explained which portions of the claims needed to be narrowed.

All of this isn’t to say that the Navy’s game is not good or that no publisher is going to buy the rights to the game; rights to games that do not have patents get purchased of licensed all the time. I feel, however, that the resources that the went into filing and preparing the patent application could have been better elsewhere.