Expand Intellectual Property Portfolio: Patent Protection Tactics
From a functional standpoint, patents provide console manufacturers with the most powerful intellectual property protection.111 In particular, the BIOS utility patent offers video game and console manufacturers relatively strong protection against emulation created by a direct BIOS dump.112 Since a patent claims functionality that extends beyond how the code is written, it is much harder to reverse-engineer around a patent than around a copyright. As such, console manufacturers should seek both copyright and patent protection; forcing competitors to reverse-engineer around a copyright and design around a patent creates a substantial competitive barrier to entry. Additionally, console manufacturers should also file for design patents to protect the user interface of the gaming console start-up screen and menu.113 Figure 10, below, is an example of a protectable interface.114 The combination of the utility and the design patents will maximize the protection potential of patents.
Copyright Protection Tactics
118 Gaming console manufacturers have traditionally focused on copyrighting video game titles for the various consoles.115 For example, Nintendo has 1500+ registered US copyrights pertaining to video games and their product packaging.116 Sony has relatively few.117 Likewise, console manufacturers should use copyright protection to protect the overall look and feel of the console start-up menu and start-up screen. This will protect the graphical monikers, icons, symbols, layout of menu-bars, shapes, and designs via copyright protection. Based on our research in March 2003, Microsoft is the only console manufacturer to have sought copyright protection for its console start-up menu.
. Function is the domain of invention in patent.
, THE MAC OBSERVER, Mar. 2003,
http://www.macobserver.com/editorial/2003/03/05.1.shtml (last visited July 4, 2004).
Screen shot from XBOX start-up menu. The authors performed a preliminary search of copyright registrations;
U.S. Copyright Office
Online, Search Records,
http://www.copyright.gov/records/ (last visited July 4, 2004).
116 117 118 Search terms include Nintento, Gameboy and Game Cube. Search terms include Sony, PlayStation, and video games. U.S. copyright registration VA-1-150-163, visited July 4, 2004).