Can a Gathering be Technical?

It was interesting to review a recent case (BL O/0390/25) before the UK Intellectual Property Office (UKIPO) concerning subject matter that does not qualify for patent protection (often termed “excluded subject matter”). The case concerned a UK patent application GB 2214412.5 held by Bandai Namco Entertainment Inc., a video game publisher known for titles such as Pac Man and Tekken.

The patent relates to a real-world gathering-style game, using augmented or mixed reality devices, with the aim being for players to gather at a particular location. These types of game have gained a lot of traction recently, with perhaps the most famous example being that of Pokémon GO. It is not surprising to see patent applications in this space given that the games do tend to have some real-world element to them, which can often lead to an invention being considered more than just a computer program or game.

There are some exclusions preventing certain types of subject matter from being patented in the UK, which includes a method of playing a game, or a computer program, with an important caveat of “as such”. In other words, if an invention relates solely to a method of playing a game or a computer program, it may be excluded from patentability, but if the invention is somehow technical in nature, a patent may be granted provided the other requirements of the UK Patents Act are met. Bandai Namco argued that the invention was technical, and therefore not directed to excluded subject matter.

The UKIPO applies a four-step test to determine if an invention is technical in nature, which in broad terms includes:

1. Understanding the claimed invention.
2. What is the contribution over the state of the art (i.e. what is new)?
3. Does the contribution fall within excluded subject matter (e.g. is it solely a method of playing a game or computer program, as such)?
4. Is the contribution actually technical in nature?

For step one, and according to the Hearing Officer of the UKIPO:

 “The application concerns a type of online video game known as an ‘open world’ game, in which characters controlled by players can move freely in a game space and meet other characters. A problem with this type of game is that, during play, distances between the positions of players’ characters can increase, leading to decreased opportunities for encounters between characters. This can result in reduced enjoyment of the game. The invention seeks to address how this problem can be overcome.”

The Hearing Officer considered the contribution at step 2 to be:

“a system arranged to run a gathering event for a number of players in real space (the real world), wherein the system determines whether the gathering event has taken place successfully by checking whether enough players have reached the gathering location.”

Crucially, this differed from the contribution put forward by the applicant’s attorney, who tried to include determining the location of real people in the real world, and generally tried to make the contribution appear more technical in nature, as expected.

At step 3, the gaming exclusion was dealt with first, followed by computer programs.

The Hearing Officer thought that meeting in the real world, being an objective of the game, is a method of playing a game rather than being a technical feature going beyond what occurs on the devices. It was also held that determining the success or failure of the gathering event based on positions of users is also game play and nothing more. 

On the computer program question, the contribution was thought to be achieved using programs running on standard hardware, to provide maps to the users’ devices, and monitoring the locations of the users to determine success/failure. This was held to be computer programs as such, because nothing beyond the game play could be attributed to these features, bearing in mind examples in the state of the art of GPS positioning systems and the display of maps on electronic devices.

Finally, the Hearing Officer considered for completeness if anything technical could be attributed to the contribution. Bandai Namco’s attorney argued generally about the real-world effects, such as real positioning relationships between users. The Hearing Officer agreed that the use of real-world sensor data to determine the position of a user is indeed technical, but this was not actually a contribution made by the present invention, as this process is “very well known indeed”. The actual contribution of the gathering of users at a specified gathering location in real space was, perhaps as expected, not considered technical in nature.

The patent application was refused for being directed to the excluded subject matter of both a method for playing a game and a computer program, as such. In the present case, this was perhaps expected. However, applicants should not assume that games/software are always excluded from patentability, and in the present case the applicant may choose to pursue an appeal which may result in a different outcome. 

For example, case T 0012/08 before the Technical Board of Appeal of the European Patent Office related to the probability of encountering a Pokémon character, which typically happened as a playable character explored the game world. In this case it was considered to be technical to vary the probability of a character appearing depending on the time. It was interesting in this case to note that dice are considered technical (albeit well known), whereas the rules of the game, such as moving a character forward by the amount indicated on the dice, are not. In this example, the variability of the chance encounter with time was considered effectively a new form of dice for technically controlling the operation of the game.

In another EPO case, T 0928/03 related to Konami Co. Ltd’s Pro Evolution Soccer video game series, the technical and non-technical features of the invention were identified for the assessment of inventive step. Previous video games in this genre had used various means of indicating which player had possession of the ball, such as a small triangular indicator above the player’s head. The case focussed on two main features, the first being the use of a ring-shaped indicator located around the player’s foot, and the second being a pass guide mark indicating another player that may be the easiest to pass the ball to. Sometimes the marker would be displayed at the edge of the user interface when the other player is off screen.

The first feature implied that the size of the player indicator was increased, thus improving the usability of the graphical user interface, while solving the problem of the indicator being concealed by a neighbouring player, which often happened with the triangular indicator due to its small size. The ring-shape on its own was considered aesthetic, and the location of the indicator at the player’s foot was driven by the rules of the game. However, taken together, surrounding the player’s foot with a ring-shaped player indicator resulted in an improved user interface.

The second feature was considered to be technical for highlighting a second point of interest (the player to pass to) to draw the user’s attention to this, and when the player was off screen, to solve the problem of displaying the zoomed in view of the player in possession of the ball but wanting to indicate a more complete view showing the easiest possible pass to a team mate. Resolving this by having an arrow at the edge of the display allowed the zoomed in view of the player in possession to be maintained, whilst keeping an overview of a direction in which to pass the ball.

The question of excluded subject matter is often finely balanced, particularly for computer-implemented inventions. At Marks & Clerk, our team of patent experts have expertise in navigating the pitfalls associated with software inventions. If you or your company requires assistance on this topic, please do not hesitate to get in touch.