Under Art. 52(2)(c) and (3), schemes, rules and methods for playing games are excluded from patentability, if claimed as such. The exclusion applies to rules for traditional games such as card or board games, as well as to game rules that underlie contemporary forms of gameplay such as in gambling machines or video games.
Game rules define a conceptual framework of conventions and conditions that govern player conduct and how a game evolves in response to decisions and actions by the players. They comprise the setup of the game, options that arise as gameplay unfolds, as well as goals defining progress in the game. They are normally perceived (or even agreed to) by the players as rules serving the explicit purpose of playing the game. Game rules are hence of an abstract, purely mental nature and are meaningful only in the gaming context (T 336/07). For example, a condition requiring two randomly drawn numbers to match for winning is a game rule.
Contemporary games, and in particular video games, are often characterised by complex interactive and narrative elements of a virtual game world. Such game elements govern how the game proceeds of its own accord (e.g. evolving characters and storylines) as well as how it proceeds in interaction with the player(s) (e.g. tapping along with the game soundtrack to make your character dance if rhythms match). Given that these elements are conceptual in nature, they qualify, in a wider sense, as rules for playing games according to Art. 52(2)(c) (T 12/08). This holds true irrespective of the fact that they might be untold or revealed only while playing.
If the claimed subject-matter specifies technical means for implementing game rules, it has a technical character. For example, when implementing the aforementioned condition of matching random numbers, the use of a computer calculating a pseudo-random sequence or of mechanical means such as cubic dice or uniformly sectored reels is sufficient to overcome an objection under Art. 52(2)(c) and (3).
Inventive step of a claim comprising a mix of game rules and technical features is examined in accordance with the problem-solution approach for mixed-type inventions as set out under G-VII, 5.4. As a principle, inventive step cannot be established by the game rules themselves, irrespective of how original they may be, or by their mere automation. It must rather be based on further technical effects of a technical implementation of the game, i.e. technical effects that go beyond those already inherent to the rules. For example, a networked implementation of a game of chance like bingo, in which numbers physically drawn by an operator undergo a random mapping prior to transmission to remote players, makes a technical contribution since the scrambling of results has the technical effect of securing a data transmission, analogous to encryption, while having no bearing on the actual playing of the game. In contrast, a reduction of memory, network, or computational resources achieved by limiting the complexity of a game does not overcome a technical constraint by a technical solution. Rather than solving the technical problem of improving the efficiency of an implementation, such a limitation would at best circumvent it (G-VII, 5.4.1). Similarly, the commercial success of a game product resulting from simplified rules is an incidental effect without a direct technical cause.
Inventive step of an implementation is to be assessed from the point of view of the skilled person, typically an engineer or a game programmer, who is tasked with implementing game rules as given to him by a game designer. Mere claim drafting exercises such as paraphrasing non-technical game elements ("win computation means" for monitoring the number of game tokens) or abstracting them ("objects" instead of "game tokens") using terms that are technical only on the surface have no bearing on inventive step.
Game rules often are designed to entertain and keep the interest of players by way of psychological effects such as amusement, suspense, or surprise. Such effects do not qualify as technical effects. Similarly, giving rise to a balanced, fair or otherwise rewarding gameplay are psychological effects, not technical ones. Hence, rules and corresponding computations which determine a game score or a skill rating for players, even if computationally complex, are usually considered non-technical.
Highly interactive gameplay such as in video games involves technical means for sensing user input, updating the game state and outputting visual, audio or haptic information. Features defining such presentations of information and user interfaces are assessed according to G-II, 3.7 and 3.7.1. Cognitive content that informs the player about the current game state at a non-technical level, e.g. about a game score, the arrangement and suits of playing cards, the state and attributes of a game character is regarded as non-technical information. This equally holds for instructions presented on game boards or cards such as "go back to square one". An example of a technical context in which the manner of presenting information can make a technical contribution is the interactive control of real-time manoeuvers in a game world, the display of which is subject to conflicting technical requirements (T 928/03).
Features which specify how to provide user input normally make a technical contribution (G-II, 3.7.1). However, a mapping of parameters obtained from known input mechanisms to parameters of a computer game qualifies as a game rule in a wider sense if it reflects the choice of the game designer, set for the purpose of defining the game or making it more interesting or challenging (e.g. a condition specifying that a slide gesture on a touchscreen determines both the power and the spin of a virtual golf shot).