2.9.2.9 Games and Gaming Machines

Date Published

Overview

Games per se are not patentable being merely mental processes, abstract ideas or schemes.

Applying the authority of the Full Federal Court in Grant v Commissioner of Patents [2006] FCAFC 120, Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 and Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177, a game does not become eligible subject matter merely because it is implemented with the assistance of cards, tokens or a games board which are characterised by intellectual information related to the rules of the game.  Games apparatus may however be patentable where it has a practical utility other than merely allowing the game to be played.  See, for example, 2.9.2.8 Printed Matter.

Care needs to be taken in assessing inventions directed to electronic gaming machines. Aristocrat Technologies Australia Pty Limited v Commissioner of Patents [2020] FCA 778 (“Aristocrat ‘20”) found that an electronic gaming machine of a specific construction, implementing a particular game, was patentable subject matter.

However, a game does not become patentable merely because it is implemented by a computer (whether described as a gaming machine or otherwise).  Examiners need to consider whether the substance of the claimed invention, when determined by considering the specification as a whole, is directed to a ’specific-purpose device’, or whether it is directed towards the implementation of a game in a ‘general-purpose device’. See 2.9.2.7 Computer Implemented Inventions - Schemes and Business Methods.  

Where there is a specific-purpose device, the invention is more likely be patentable. However, where general-purpose computing devices are used then the considerations presented in 2.9.2.7 Computer Implemented Inventions, Schemes and Business Methods should be taken into account to determine the substance of the invention. Of key consideration is that if the invention lies in an improvement to the operation of the computer or in the application of the computer to the playing of a game, then it may be eligible. For example, the application of specific networking features to improve communication between games machines.


Aristocrat ‘20

Aristocrat Technologies Australia Pty Limited v Commissioner of Patents [2020] FCA 778 (“Aristocrat ‘20”) has provided guidance in explaining that a device of specific character is a patentable invention. The case involved four innovation patents which all have similar features. An example claim is as follows:

A gaming machine comprising:

a display;

a credit input mechanism operable to establish credits on the gaming machine, the credit input mechanism including at least one of a coin input chute, a bill collector, a card reader and a ticket reader;

meters configured for monitoring credits established via the credit input mechanism and changes to the established credits due to play of the gaming machine, the meters including a credit meter to which credit input via the credit input mechanism is added and a win meter;

a random number generator;

a game play mechanism including a plurality of buttons configured for operation by a player to input a wager from the established credits and to initiate a play of a game; and

a game controller comprising a processor and memory storing (i) game program code, and (ii) symbol data defining reels, and wherein the game controller is operable to assign prize values to configurable symbols as required during play of the game, the game controller executing the game program code stored in the memory and responsive to initiation of the play of the game with the game play mechanism to:

select a plurality of symbols from a first set of reels defined by the symbol data using the random number generator;

control the display to display the selected symbols in a plurality of columns of display positions during play of a base game;

monitor play of the base game and trigger a feature game comprising free games in response to a trigger event occurring in play of the base game,

conduct the free games on the display by, for each free game, (a) retaining configurable symbols on the display, (b) replacing non-configurable symbols by selecting, using the random number generator, symbols from a second set of reels defined by the symbol data for symbol positions not occupied by configurable symbols, and (c) controlling the display to display the symbols selected from the second set of reels, each of the second reels comprising a plurality of non-configurable symbols and a plurality of configurable symbols, and

when the free games end, make an award of credits to the win meter or the credit meter based on a total of prize values assigned to collected configurable symbols.

In his considerations, Justice Burley identified that the invention “is to a mechanism of a particular construction, the operation of which involves a combination of physical parts and software to produce a particular outcome in the form of an EGM that functions in a particular way.” [95] “Simply put, the machine that is the subject of the claims is built to allow people to play games on it. That is its only purpose. … It is a device of specific character.” [98]

Consequently, electronic gaming systems which are well-specified and include all necessary hardware to operate them, and are designed for only that one purpose (the playing of the game) may be considered to be ”specific-purpose device” and are patentable. However, electronic games played on general purpose computer systems must be assessed as discussed in 2.9.2.7 Computer Implemented Inventions, Schemes and Business Methods.


Example 1:

Office decisions in Aristocrat Technologies Australia Pty Limited [2016] APO 49 (Aristocrat ‘16) and Aristocrat Technologies Australia Pty Limited [2017] APO 1 (Aristocrat ‘17) provide useful guidance for determining the patentability of gaming machines.  

Aristocrat ‘16 and '17 are directed to two applications with similar claims.  A relevant claim from Aristocrat '16 defines the invention as follows:

A gaming machine including a controller and a touch sensitive electronic display, the controller being arranged to cause a game selection image to be displayed on the electronic display, the game selection image including a plurality of separate image elements including:

a)  a name of a game that is available for play on the gaming machine; and

b)  a set of different bet denominations for the game, wherein at least one of the sets of denominations of at least one of the separate image elements is different to the set of bet denominations of at least one other of the separate image elements,

the gaming machine being further arranged to allow a player to select a game and a denomination by touching the touch sensitive electronic display where a respective denomination is displayed.

In Aristocrat ’17 the relevant claim was as follows:

A gaming machine comprising: an electronic game controller; and a touch sensitive display that is electrically coupled to the game controller, wherein:

the game controller is arranged to facilitate a play of any one of a plurality of games available on the gaming machine, each of the plurality of games being a spinning reel game of chance;

a first set of a plurality of denominations is associated with at least a first two of the plurality of games, and a second set of a plurality of denominations is associated with at least a second two of the plurality of games, the second set of a plurality of denominations being different to the first set of plurality of denominations; and

the game controller is further arranged to:

cause a simultaneous display of a plurality of separate image elements on the touch sensitive display, wherein separate image elements identify each of the at least a first two of the plurality of games and separate image elements identify each of the at least a second two of the plurality of games;

enable a player to make an initial selection of one of the at least a first two of the plurality of games or one of the at least a second two of the plurality of games by touching the touch sensitive display; and

subsequent to the player making the initial selection of one of the at least a first two of the plurality of games or one of the at least a second two of the plurality of games, enable the player to select any one of the plurality of different bet denominations associated with the selected game by touching the touch sensitive display.

The claims in Aristocrat ‘16 were found patentable, but not in Aristocrat ‘17.  

In Aristocrat ‘16 the delegate found that the substance of the invention was an improved interface that presents an option for selecting both a game and denominations from respective pluralities, with one action by a player.  This contribution was found to be “technical in nature, and [achieved] a practical and useful result”.  

The specification of Aristocrat ’17 did not limit the invention to a ‘specific-purpose device’ and included implementation on a general-purpose system. The delegate in Aristocrat ‘17 considered the substance of the invention to include the fact that all games were spinning reel games of chance and the specific way in which the games were divided into groups with group-specific associated sets of bet denominations.  The delegate did not consider this substance to produce any technical, practical or useful result, and did not see any improvement in the relevant computer technology.


Example 2: Gaming Machine Game Play

An area of gaming machine function to which claims are often directed involves processes of actual game play.  A first example below, directed to an invention describing three-dimensionally displayed spinning reels, is contrasted with an invention directed towards the playing of games where probability of player success is modified.

“Compound reels”

A method of gaming comprising:

generating one or more reels in a spinning reel game, said reels configured for being displayed as three dimensional and comprising a plurality of game symbols arranged along and around said reels, said reels configured to be displayed with their game symbols provided along and around said reels;

displaying spinning of said reels and thereby sequentially displaying at least some of said game symbols displayed as provided along said reels;

displaying rotating of said reels and thereby sequentially displaying at least some of said game symbols displayed as provided around said reels;

stopping said spinning and said rotating of each of said reels at a respective stop position;

determining a game outcome based on at least some of said game symbols displayed when each of said reels is in its respective stop position; and

displaying some or all of said reels as compound reels, each of said compound reels comprising an inner two- or three-dimensional reel provided with game symbols and an outer at least partially transparent three-dimensional reel provided with game symbols.


“Probabilities of player success”

A method of gaming comprising:

displaying play of a wager game; triggering a first feature of the wager game in which one or more feature enhancing elements are awardable to a player;

triggering a second feature of the wager game, the second feature being randomly triggerable during play of at least one of the wager game and the first feature; and

allowing awarded feature enhancing elements to be utilised in the second feature to provide a player advantage in the second feature.

It should be noted that no specific hardware is utilised in either claim, and consequently they are both directed towards general-purpose devices.

In the first claim, it may be said that the substance of the invention is the use in a spinning reel game of three-dimensional reels that spin vertically along and rotate horizontally around the reel. Here it can be argued that this provides a material advantage or technical effect of optimised/improved use of screen space.  

The substance of the second claim is the presence of "a second feature" whereby feature enhancing elements may be utilised to provide player advantage.  Such a substance is clearly directed to rules of the game associated with probability and chance and, consequently, may be considered a mere scheme.