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A slot machine company has been refused the chance to patent parts of its games because the hearing officer and the Court of Appeal said that the company had simply changed the gameplay and rules of its slot machine games and so were not patentable.

IGT had applied for four patents for gaming systems which operated games of chance. A hearing officer acting on behalf of the Comptroller General of Patents said that none of the four claims was patentable because the inventions all fell into areas which were excluded from patentability by the Patents Act.

The hearing officer said the inventions fell under the category of being "schemes, rules and methods for playing a game".

The Act says:

"It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say anything which consists of – (a) a discovery, scientific theory or mathematical method; a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever; (b) a scheme, rule or method for performing a mental act, playing a game, or doing business, or a program for a computer; (c) the presentation of information; but the foregoing provision shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent or application for a patent relates to that thing as such."

IGT appealed against the hearing officer's ruling, but the High Court rejected the appeal in relation to all four patent applications. The Court followed the guidelines laid down in last year's landmark patents ruling on the Aerotel and Macrossan cases.

"The important question, following Aerotel, is, so it seems to me, not whether the subject matter of the claim is patentable and outside the excluded territory, but whether the contribution over and above the prior art, assuming that the claim is otherwise sufficient to result in patentability, is within the excluded territory," said Justice Warren in his judgment

"The question is whether the contribution identified consists of excluded subject matter as such. It is fair to note, however, that Article 52 does not, as it might have done, exclude games per se. The apparatus for playing a game remains, in theory, patentable," he said.

In one of the claims, IGT said that its invention was more than just a method for playing a game. Justice Warren summarised IGT's position saying: "The contribution provided by the claimed invention is thus a new system operable to track machine use … It is new because it provides a new combination of elements including a new form of controller, not merely because of the manner of its use. [IGT's lawyer] says that this is still true even if the controller could have been implemented using conventional components. The contribution is not properly to be characterised as 'a mere scheme, rule or method for playing a game as such'."

Justice Warren disagreed. "In my judgment, when the contribution is understood in the context of the prior art, it is properly to be seen as a way of operating a game. It is not to be categorised as a tool for playing a game (any more than the system in Macrossan was to be seen as a tool in the application of a business method). Applying the four steps in Aerotel, the contribution falls within the exclusion," he said.

Similar judgments were given for the three other patent claims, each of which was said to produce new inventions only in the excluded field of "schemes, rules and methods for playing a game".

See: The ruling

Copyright © 2007, OUT-LAW.com

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

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