Okay, Game Industry. It’s Time. We Need to Talk About Patents.

Earlier today, a jury found Nintendo’s 3DS console guilty of infringing on a glasses-free three-dimensional screen patent belonging to independent inventor Seijiro Tomita. The resulting fine is about $30 million–a hugely astronomical amount for you and me, but arguably chump change for a company that’s easily worth a trillion dollars.

Nintendo is confident that–not only will the jury’s decision be made obsolete–but that the resulting fine will not cripple Nintendo in any way:

Nintendo is confident that the result will be set aside. The jury’s verdict will not impact Nintendo’s continued sales in the United States of its highly acclaimed line of video game hardware, software and accessories, including the Nintendo 3DS. Nintendo has a long history of developing innovative products while respecting the intellectual property rights of others.

So… wait. What does that mean? We understand the nearly-omnipotent power the big three have over small inventors and developers, but what happens when the status quo tilts to one side and doesn’t level off again? Monetarily, trying to cripple Sony, Microsoft, or Nintendo is like trying to kill a dragon with a fly-swatter, but has the patent system done more harm than good in the gaming industry?

(For the record, any theoretical discussion herein does not necessarily agree or disagree with the specific result of the Nintendo trail, but rather looks to it as both an example of hypothetical guilt and of innocence a larger intellectual war. )

SO LET’S TALK ABOUT PATENTS

We’ve created a system that absolutely stunts independent creation. On the off chance that an inventor produces an entirely new intellectual creation, patents it,  and said invention is infringed upon, the ensuing legal battle could cripple the inventor. And, Nintendo demonstrates, If you have enough cash to pay a guilty  fine, punishment becomes completely arbitrary. 

Do you think intellectual ownership is something that’s hurting the gaming industry? One typically doesn’t measure an item’s worth by how much competition there exists for it on the market. The 3DS, for instance, simply is the 3-D console available for play. It gets the job done, but the job is a self-set standard. 

HERE BE TOTALLY HERETICAL THEORY

But in a fantasy scenario where the patent industry had never blossomed, one could assume that the market would be bloated with copycat technology. There would, essentially, be no ‘brand name,’  no source of a leading product, no console for developers to group around. The console war would dissolve into total console… soup. 

Conversely, if the patent system simply ceased to exist–if we woke up tomorrow and the entire institution had disappeared overnight–companies on the top of the pyramid wouldn’t simply tumble off.  Recognition is nearly as important as patenting when it comes to video game companies; there’s a reason why we have a ‘big three’ to begin with. 

Is there a balance to be found here? Like most things, the idea of patenting is good in theory. But in the end does it help a still-budding industry that’s part technology, part entertainment? For instance… how many ways can you think of to create a game controller? I’m not industrial designer, but pretty much anything I can think of has already been made. 

MAKING CREATIVE RIGHTS WORK

There are a whole slew of potential solutions to the patent problem. In the instance of the video game industry, we’ve become habituated to the idea of our giants: when somebody comes up against a major game company, we assume there’s a right and a wrong.

But in the totally probable event that two groups independently come to the same creative conclusion, how does ‘ownership’ of an idea come to an end? Do we significantly shorten the length of the patent; do we create a sliding end date that’s depends on the level of revenue created by the product? 

What’s your take on the patent problem?