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Can I Patent my Board Game?

Brett Trout

The short answer is “yes.” Many board game designers have patented their board games. Given that board games are indeed patentable, the better question might be “Should I patent my board game?” With the cost of patenting a board game running $12-$25K or more and the cost of suing someone for infringing your board game patent running up to seven or eight figures, unless you are planning on making large profits from your game, you may want to forego patent protection. Conversely, if you do anticipate large profits from your game, patent protection may dramatically increase those profits. The extreme example would be the patent on Magic the Gathering that carved out a monopoly allowing the owners of that patent to sell over 20B cards to over 20M players. So while patenting your board game is a good idea, it likely only makes sense if: 1) you plan on your game being in the top 5-10% in overall game sales; and/or 2) you have a publisher willing to pay you a large fee to license your game.

Say your game is the exception, rather than the rule, and you do want to pursue patent protection. What does it take to get a patent on a board game? Board game patents do not protect the entire game. They only protect a narrowly-defined combination of elements that make up a certain mechanic or part of the structure or play of your game. A patent cannot protect the name of your game, your logo, your text, your artwork, or your graphic layout. Those items may instead be protected by trademark and copyright. You also cannot obtain a patent on simply an idea or a concept for a game. To obtain a patent, you have to describe in detail exactly how to make at least one actual embodiment or mechanic of your game.

To obtain a patent, your board game must be new, useful, and nonobvious. Proving your game is new and useful is not as difficult as proving your game is nonobvious. To be nonobvious, your game must be more than simply a new combination of old mechanics. Your game has to either employ a new mechanic, or a combination of existing mechanics in a way that your average skilled board game designer would not have thought of combining. In denying your patent application, patent examiners are allowed to combine mechanics from several other games to show your game is merely an “obvious” combination of old elements and therefore unpatentable. Factors weighed in this determination include: the commercial success of your game, long-felt but unsolved needs in the industry for a game such as yours, failure of others to design similar game, and unexpected results of your particular combination of pre-existing mechanics. None of these factors are dispositive, however, meaning that the determination of the patentability of your game will depend on your specific game, the specific games that preceded yours, and the desire in the industry for a game such as yours.

Unlike trademark and copyright registrations, patent registrations are more detailed and complex. One small error may invalidate your entire patent. Moreover, if you had fifty patent attorneys draft a patent covering your board game, no two of the patents would be the same. They would all have a different scope of protection, varying from narrow to broad. The more narrow your patient, the easier it is for competitors to change one or two items to circumvent your patent. The broader your patent, the better able it is to carve out a larger monopoly. So picking the best patent attorney for your game is extremely important. While disclosing your new board game design does not necessarily prevent you from later applying for a patent, if you wait a year or more after such a disclosure, your game design may be in the public domain and, therefore, unpatentable. If you have disclosed your game to playtesters, publishers, or anyone else, it is important to contact a patent attorney as soon as possible to determine the deadline for getting your patent application on file.

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Posted in Board Games, Choosing the Best Lawyer, Patent Law. Tagged with .