How to Patent a Game Idea

By Contributor
Patent your idea.

Many inventors of games (both board games and computer games) have indeed made fortunes from their inventions, though the odds are certainly against it. The first thing you should know is that you cannot patent a mere idea for a game, anymore than you can copyright a mere idea for a novel. (And it's important to understand the difference between a patent, a copyright and a trademark. That's all spelled out on the website of the U.S. Patent and Trademark Office; see Resources below). You need a detailed design to qualify for patent protection, and it must meet certain criteria. Once you've developed your idea, and think you are ready to present it to an eager public, here's how you proceed.

Make certain your concept meets the patent test. There are essentially two criteria it must meet: It must be in some respect innovative, and it must be unfamiliar. The first condition does not necessarily mean that it must be a totally revolutionary breakthrough, but it does need to be at least a new wrinkle on something old. (Contrary to popular misconception, video game software can indeed pass the originality test.) The second condition stresses the importance of keeping your invention under your hat before you're ready to patent it. Certainly, you'll need to test a new game before you market it; but it would be wise to limit such tests to a select few--immediate family or very trustworthy friends. Whatever you do, don't post your ideas online or otherwise place them before the general public. To do so will certainly kill all hopes for a patent.

Make detailed documentation. This will include drawings of your design, as well as a clear explanation of the rules for your game. But any other notes and records you can keep on file may also prove to be very useful in staking your claim.

Build a prototype. This is more economical to do for game designers than for most other inventors; it involves only writing a computer program or fashioning a rudimentary playing board and game pieces out of wood, clay, or whatever other materials might be suitable.

Conduct a patent search to make certain nobody else has explored your territory before you. You might consider engaging an attorney for this step, but doing so will increase the total cost of the application process from a couple of thousand dollars or so to easily five times that amount. That's a very expensive undertaking, particularly when there's no guarantee that your application will be approved. It makes sense, at least economically, to have a go at the search yourself before you decide you need to call in the legal cavalry. If you are certain that nothing like your game has been developed before 1976 (if, for example, it's computer-based) then you can search for similar patents quite effectively on the USPTO website, which has a file of patents granted since that year–there is also a listing of patents granted going all the way back to the inception of the U.S. Patent system in 1790. For an even more extensive search, try the Google patent search engine (see Resources below). Or to make even more certain your search is thorough, you can shell out a few bucks to hire an online patent search service such as Delphion (see Resources below). But for the most exhaustive resources of all, you should rely on the records maintained at specially designated libraries called Patent and Trademark Depository Libraries; there is at least one in your state. For a listing, see the USPTO website.

If the patent search uncovers an existing patent that sounds uncomfortably similar to your own, don't despair just yet. Compare the inventions in more detail to make certain yours has something new and significant to offer. If so, move full speed ahead.

File the patent application with the USPTO. You have a couple of options. You can go ahead and file the regular application, which is going to cost a bundle and may take three years to approve. Or you can first file a provisional patent application, which is simpler, faster and much cheaper. That doesn't let you off the hook, mind you: You'll still have to file a regular application or your efforts will be for naught. But at least a provisional application will allow you to proceed in the meantime with the marketing of your invention, bearing the designation “Patent Pending."

Tip

When you keep records of your invention development, it's a good idea to have the steps dated and verified by independent witnesses.

Warning

Ever hear of the “poor man's patent” (or “poor man's copyright”)? Forget it, there's no such thing. Mailing a copy of documentation to yourself will not prove anything except that you know how to calculate postage.

The author of this article is not a lawyer, and nothing here should be construed as a guarantee of success. It's a fact of life that not every patent application is approved.