3.5.2 Schemes, rules and methods for playing games 

Under Art. 52(2)(c) and Art. 52(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 for contemporary forms of gameplay such as 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 the players' decisions and actions. They comprise the setup of the game, options that arise as gameplay unfolds and 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 therefore of an abstract, purely mental nature and are meaningful only in the gaming context (T 336/07). For example, a condition requiring a match between two randomly drawn numbers for a win 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 players (e.g. tapping along in rhythm with the game soundtrack to make their character dance). These elements are conceptual in nature, and so they qualify, in a wider sense, as rules for playing games within the meaning of Art. 52(2)(c) (T 12/08). This holds true even if they are unspoken or not revealed until during play.

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 Art. 52(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 set out in G‑VII, 5.4. As a matter of principle, inventive step cannot be established by the game rules themselves, irrespective of how original they may be, or by their mere automation. Rather, it must 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 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 set 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 making them more abstract ("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 hold the players' interest 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 is a psychological effect, not a technical one. As a result, rules and associated computations determining a game score or a player's skill rating, 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 as described in G‑II, 3.7 and G-II, 3.7.1. Cognitive content that informs the player about the current game status at a non-technical level, e.g. about a game score, the arrangement and suits of playing cards, the status and attributes of a game character, is regarded as non-technical information. The same goes for instructions presented on game boards or cards, e.g. "go back to square one". An example of a technical context in which the way information is presented can make a technical contribution is the interactive control of real-time manoeuvres in a game world, the display of which is subject to conflicting technical requirements (T 928/03).

Aside from rules, the state of a game world may also evolve in accordance with numerical data and equations that model physical principles or pseudo-physical behaviour, especially in video games. The systematic calculation of updates to such game states amounts to a computer-implemented simulation based on these models (G 1/19). For the purpose of assessing inventive step in this context, the models are to be understood as defining a given constraint for a corresponding implementation on a computer (G‑VII, 5.4). Unlike effects that are intrinsic to the virtual game world or are otherwise inherent to the model already, the effect produced by a specific implementation of a simulation, if adapted to the internal functioning of a computer system, is technical. For instance, merely predicting the virtual trajectory of a billiard ball shot by the player, even if highly accurate, fails to solve a technical problem beyond its implementation. In contrast, adjusting the step sizes used in the distributed simulation of bullets fired in a multi-player online game based on current network latencies produces a technical effect.

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 a choice made by the game designer 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).