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For videogame developers, publishers and investors, the most important asset is the intellectual property rights they own or control in the game. All of the elements of a videogame-the story, audiovisual elements, underlying computer code and even “gameplay” elements (that specify the way the user interacts with and experiences a game)-are subject to one or more forms of intellectual property protection. Traditionally, intellectual property protection for videogames has been based upon either trade secret, copyright or trademark. Patents, however, are quickly becoming an important part of the videogame industry. Many people in the videogame industry dislike the idea of patent protection for videogames because they believe patents will stifle innovation and hinder the development of the industry. Just as other industries have had to incorporate patents as a form of intellectual property protection, the videogame industry must learn to consider, and adapt to, the implications of patent protection for videogames. Unlike copyrights, patents protect more than just the specific expression of an idea. Whereas copyrights would protect the source code used to implement a function in a computer program, a patent can protect the idea for the function itself, provided the idea was novel and nonobvious. Patents, issued by the U.S. Patent and Trademark Office, grant their owners “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or from “importing” the invention into the United States. The term of a patent filed after June 8, 1995, is generally up to 20 years, measured from the filing date of the patent application. The previous term for a utility patent was 17 years from the date the patent was issued. One of the most powerful aspects of patent protection in the United States is that it applies to everyone. This means that, unlike in the case of trade secret or copyright protection, there is no requirement that an infringer have knowledge of a company’s intellectual property or the intent to appropriate that intellectual property. A patent is infringed when a third party makes, uses, sells, offers for sale or imports an invention that is the subject of the owner’s patent, regardless of the infringer’s ignorance of the patent or lack of malicious intent. Even independent development of an invention is not a defense to a claim of patent infringement. Despite concerns that patents and the lawsuits they create will rob the videogame industry of creativity, cripple its growth and generally be a bad thing, patents have the potential to be very useful for videogame developers, publishers and investors. Through the threat of litigation, patents can be used to exclude a competitor from a market that the patent holder has expended a great deal of time and resources in developing. When a patent is infringed, the owner may enjoin the use of the invention and compel the payment of damages, royalties and attorney fees as redress for the misappropriation of his/her intellectual property. Inventorship and innovation may be evidenced by obtaining patent protection for an emerging technology. Finally, patents are assets that can be used to secure funding to develop a technology or business. What these patents cover Videogame patents can cover everything from hardware devices to software, business and gameplay methods. Software patents for videogames include the various systems and methods used to generate the graphics, sound, physics, artificial intelligence, user input and feedback, as well as the content distribution, digital rights management and anti-piracy systems. Hardware patents may cover numerous components used in videogame systems, including input and feedback devices, network cards, wireless transceivers, storage devices/media and a seemingly endless number of other components that go into the modern PC or videogame console. Business method patents include various micropayment systems and methods for providing and measuring online advertising. Gameplay patents cover the methods of determining how the user experiences a game, as well as the features and rules of a game, such as methods of keeping score. One example of a gameplay patent is U.S. Patent No. 6,763,273 for a “Kudos Scoring System with Self-Determined Goals,” which claims a scoring method and system for determining points in a game. Goal-based points are determined as a function of a player achieving a goal set by the player (not predefined by the game) and are used to determine the player’s status in the game. Patents for videogames are not new. It is likely that the first “videogame” patent was granted to Thomas T. Goldsmith Jr., et al., for their “Cathode-Ray Tube Amusement Device.” The Goldsmith patent application was submitted to the U.S. Patent Office on Jan. 25, 1947, and U.S. Patent No. 2,455,992 was awarded on Dec. 14, 1948.

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