In 2014, the United States Supreme Court issued its decision in Alice Corp. v. CLS Bank, Inc. While the decision is long and convoluted, the Alice decision effectively narrowed the scope of patentable subject matter by holding that algorithms, computational methods, and other mathematical principles are not eligible for patent protection where the purported invention essentially equates to instructing an existing generic computer to implement those abstract ideas.
Since the Alice decision came out, scores of software related patents have been invalidated based on Alice. One author researched and concluded that 286 out of 345 patents that had appeared in front of Courts had been invalidated by June, 19, 2015–just one year after the Alice decision. This represented an invalidation rate of 82.9% which, if applied across the full range of the approximately 240,000 patents that rely on computer implementation, suggests that only about 41,000 of those patents likely remain valid.
The video game industry is likely to see significant changes as a result of the Alice decision. Two relatively recent and notable cases include Acceleration Bay LLC v. Activision Blizzard Inc. and White Knuckle Gaming v. Electronic Arts. In the first case, Activision recently filed a motion to invalidate patents covering technology that allow players to connect and communicate inside the game. The second case is currently being appealed to the Federal Circuit, but EA successfully convinced the district court that a patent relating to updating sports information in video games with real time states was invalid under Alice.
The lessons for game developers are two-fold. First, don’t expect to obtain patent protection unless you are also developing specialized hardware which may be patentable. And two, have your attorneys take a long hard look at any patents that are threatened against you or which are otherwise causing you concern. There may be a good possibility that the patent is unlikely to survive an Alice-based challenge.