2.9.2.9 Games and Gaming Machines

In this topic:​​​​​​​

Overview

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

A game does not become eligible subject matter merely because it is played with the assistance of cards, tokens or a games board which are characterised by intellectual information related to the rules of the game.  A game's 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.

Similarly, rules to a game not do become patentable merely because the game is played on a computer (whether described as a gaming machine or otherwise) as was highlighted in Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2021] FCAFC 202 at [16] (see also Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 at [75], [116], [120]).  The general principles for assessing patentability of a gaming machine are the same as those applied to other computer implemented inventions.  In such applications examiners need to consider whether the substance of the claimed invention is directed to suitable subject matter in accordance with the established principles.  If the substance lies in an improvement or adaptation to the operation of the computer or in the application of the computer to the playing of a game, then the invention may be eligible.  For example, the application of specific networking features to improve communication between game machines See 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 included implementation on a "general-purpose" or "standard" computer 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.

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.