Creative vs. Corporate: Patent Infringement Awards Respawn the Debate over Patenting Video Games

It is common for businesses involved in developing and bringing to market consumer products to go through the "it's all about the art" vs. "it all about the bottom line" conflict that invariably raises its head from time to time. This conflict tends to arise when individuals from the creative side of the house and individuals from the business side of the house get together with legal counsel to discuss strategies for protecting the fruits of their collective labor. Nowhere is this tension more apparent than in the world of video game development.

The basic tools available for protecting video game intellectual property are no different than those generally available for any field, and include patents, trademarks, copyrights and trade secrets. Trademarks create brand identity and can be the first consumer-facing aspect of a product, making protection of trademarks vital. Copyrights protect the tangible creative writing, including computer code, artwork, music and other artistic elements of game development. They can be very valuable, but are generally limited to protecting the actual expression of the author, and infringement is generally limited to actual copying. Trade secrets can protect ideas (e.g., game story concepts and characters that are still in development and not yet made public), important algorithms, source code that is not readily accessible, etc. However, trade secrets are only afforded protection if kept secret, and if the secret is discovered through legitimate research, the protection can be lost.