The question which concerns tabletop game patent applications most is: are tabletop games patentable? I am of the opinion that equipment (such as cards and boards), parts, and accessories of tabletop games are patentable in the form of invention, utility model and design.
Taking out Invention Patents on Tabletop Games
The Patent Act, Article 211 and Paragraphs 1, 2 of Article 222 provide for invention patent applications.
The first question about taking out invention patents on tabletop games is: are tabletop games eligible for the legal concept “invention” defined in Article 21 of the Patent Act?
Under the Guidelines for Patent Examination,a Part II, Chapter 2, Section 1.3.4, rules of games do not fall into the categories of invention patents, but equipment, parts and accessories of tabletop games will, provided that they are inherently technical. Hence, if tabletop game invention patent applications are filed to claim equipment, parts or accessories of original tabletop games and the equipment, parts or accessories feature a technicality, the filing of the invention patent applications will comply with Article 21 of the Patent Act.
The second question about taking out invention patents on tabletop games is: do tabletop games meet the industrial applicability requirements set forth in the Patent Act, Article 22, Paragraph 1?
Under the Guidelines for Patent Examination, Part II, Chapter 3, Section 1.2, an invention shall be industrially useful and thus have industrial applicability, provided that the invention is industrially producible or useful. Hence, preparation for or undertaking of commercial activity, such as manufacture or sales, of original tabletop games complies with the Patent Act, Article 22, Paragraph 1.
The third question about taking out invention patents on tabletop games is: do tabletop games meet the novelty requirements set forth in the Patent Act, Article 22, Paragraph 1?
Under the Guidelines for Patent Examination, Part II, Chapter 3, Section 2.2, if an invention claimed by a patent application is not attributed to the prior art, the invention shall have novelty, wherein the prior art is defined as technology published before the filing of the patent application, applied openly or well known to the public. Hence, tabletop games shall have novelty when original. However, if the Taiwan Intellectual Property Office (TIPO) searches and finds any prior art similar or identical to the prior art pertaining to an invention patent application for a tabletop game, the TIPO will not issue an invention patent to the tabletop game pursuant to the Patent Act, Article 22, Paragraph 1.
The fourth question about taking out invention patents on tabletop games is: do tabletop games meet the non-obviousness requirements set forth in the Patent Act, Article 22, Paragraph 2?
Under the Guidelines for Patent Examination, Part II, Chapter 3, Section 3.2, if an invention claimed by a patent application is distinguished from the prior art and persons skilled in the art pertaining to the invention are unable to accomplish the invention by making reference to the prior art which exists before the filing of the patent application, the invention shall have non-obviousness. Hence, a tabletop game will have non-obviousness, if the tabletop game is not only original but also distinguished from conventional tabletop games. However, if the TIPO searches and finds any prior art different from the prior art pertaining to an invention patent application for a tabletop game but believes that persons skilled in the art pertaining to the invention are able to accomplish the invention by making reference to the prior art, the TIPO will not issue an invention patent to the tabletop game pursuant to the Patent Act, Article 22, Paragraph 2.
Hence, under the Patent Act, invention patents are likely to be issued to equipment, parts or accessories of original tabletop games.
Taking out Utility Model Patents on Tabletop Games
Most of the aforesaid provisions of the Patent Act regarding invention patent application shall be applied mutatis mutandis to utility model patent applications. Hence, the other applicable provisions of the Patent Act are described below.
The first question about taking out utility model patents on tabletop games is: are tabletop gameseligible for the legal concept “utility model” defined in Article 104 of the Patent Act3?
Under the Guidelines for Patent Examination, Part IV, Chapter 1, Section 2, utility model patents can be issued to goods manufactured in accordance with features, such as shape, structure or composition, of the invention and endowed with a usage value and a practical purpose. Hence, to comply with Article 104 of the Patent Act, tabletop game utility model patent applicants have to not only file utility model patent applications for claiming such features as shape, structure or composition of original tabletop games but also prepare for or undertake commercial activity, such as manufacture or sales, of the original tabletop games.
Hence, when it comes to tabletop games, utility model patents differ from invention patents in that the subject matter of the utility model patents must be shape, structure or composition, but utility model patents are the same as invention patents in terms of the requirements of industrial applicability, novelty and non-obviousness.
Taking out Design Patents on Tabletop Games
The Patent Act, Article 121, Paragraph 14, and Article 122, Paragraphs 1, 25 provide for design patent applications.
The first question about taking out design patents on tabletop games is: are tabletop games eligible for the legal concept “design” defined in Article 121 of the Patent Act?
Under the Guidelines for Patent Examination,3 Part III, Chapter 2, Section 1, to comply with the Patent Act and thus be issued a patent, the “shape, pattern, color, or a combination thereof” displayed by a design claimed by a design patent application must meet two requirements, namely “be applied to goods” and “be perceived by visual appeal.” Hence, design patent applications for original tabletop games will comply with Article 121 of the Patent Act, provided that the appearance of the equipment, parts and accessories of the tabletop games have visual appeal and the tabletop games are applicable to goods.
The second question about taking out design patents on tabletop games is: do tabletop games meet the industrial applicability requirements set forth in the Patent Act, Article 122, Paragraph 1?
Under the Guidelines for Patent Examination, Part III, Chapter 3, Section 1.2, a design will be deemed industrially useful and thus have industrial applicability, provided that it is practicable for the design to be applied to the manufacturing or usage. Hence, preparation for or the undertaking of commercial activity, such as manufacture or sales, of original tabletop games is conducive to the compliance of the Patent Act, Article 122, Paragraph 1.
The third question about taking out design patents on tabletop games is: do tabletop games meet the novelty requirements set forth in the Patent Act, Article 122, Paragraph 1?
Under the Guidelines for Patent Examination, Part III, Chapter 3, Section 2.2, a design claimed by a design patent application shall have novelty, provided that no other design identical or similar to the claimed design is attributed to the prior art, wherein the prior art is defined as technology published before the filing of the patent application, applied openly or well known to the public. Hence, tabletop game design patent applications will have novelty, provided that the appearance of the tabletop games is original and is perceived by visual appeal. However, the odds are that the appearance of the tabletop games will not comply with the Patent Act, Article 122, Paragraph 1 and thus will not be issued design patents if the TIPO searches and finds any prior art similar or identical to the appearance of the tabletop games.
The fourth question about taking out design patents on tabletop games is: do tabletop games meet the non-obviousness requirements set forth in the Patent Act, Article 122, Paragraph 2?
Under the Guidelines for Patent Examination, Part III, Chapter 3, Section 3.2, a design claimed by a design patent application shall have non-obviousness, provided that the claimed design is neither identical nor similar to the prior art and cannot be conceived by persons skilled in the art by making reference to the prior art which exists before the filing of the design patent application. Hence, tabletop game design patent applications will have non-obviousness, provided that the appearance of the tabletop games is not only original and perceived by visual appeal but also distinguished from the appearance of conventional tabletop games. However, if the TIPO searches and finds any prior art different from the prior art pertaining to a design patent application for a tabletop game but believes that persons skilled in the art pertaining to the design are able to easily conceive the appearance of the tabletop game by making reference to the prior art, the TIPO will not issue a design patent to the appearance of the tabletop game pursuant to the Patent Act, Article 122, Paragraph 2.
Therefore, design patents are issued to tabletop games whose appearance has visual appeal and is original, pursuant to the aforesaid provisions of the Patent Act.
Conclusion
In conclusion, invention patents and utility model patents are issued to equipment, parts and accessories of original tabletop games, and design patents are issued to appearance of original tabletop games which have visual appeal.
Reference
a. Guidelines for Patent Examination, visit http://www.tipo.gov.tw/lp.asp?CtNode=6680&CtUnit=3208&BaseDSD=7&mp=1
Law
1. Patent Act, Article 21
2. Patent Act, Article 22, Paragraphs 1, 2
3. Patent Act, Article 104
4. Patent Act, Article 121, Paragraph 1
5. Patent Act, Article 122, Paragraphs 1, 2