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Football video game wins European patent

Kicks previous ruling into touch

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The maker of a video game that improves player control has been granted a patent despite the European Patent Convention stating that "methods for playing games" are excluded from patentability.

Game developer Konami applied for a patent for a system which identifies which player in a football game has the ball and in what direction the nearest player is to whom he can pass the ball. The game identifies the player and direction with a graphical mark which follows the player below his feet.

That application was denied by the European Patent Office's (EPO) examining division. The company appealed to the Technical Board of Appeal which has now granted the patent.

The original application was denied because the examining division ruled that only one part of the new system was actually a technical issue and that there existed previous examples of it, known as prior art.

The Technical Board of Appeal found that there were more elements which constituted technical improvements and that some of these were new and did not have prior art associated with them.

Both times the application was judged it was decided that the application was acceptable, despite the Patent Convention's exclusion of "methods for playing games", which appears in Article 52 of that convention.

"Eligibility for patent protection has not been called into question by the Examining Division," says the technical board's ruling. "The guide display device according to claim 1 indeed represents a physical entity in particular comprising displaying means which have a technical character by their nature. The displaying steps of the independent method claim imply the use of displaying means which provides a technical character to the method."

The ruling says that it follows the landmark Hitachi judgment of 2004 which defined what could be included for patent consideration under Article 52 broadly. Following the precedent set by that ruling, the EPO will allow a patent claim to be made as long as it involves technical means.

In contrast, many national patent offices, including the UK's, have a much more narrow definition of what constitutes a patentable invention and take a harder line on preventing software and games patents.

The ruling overturned the earlier decision and ordered that a patent be granted. It said that the direction marks did involve an inventive step and that they had technical character. Though some of the other claims would not be permitted, the invention as a whole was deemed patentable.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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