Until now the Patent Office has relied on an Official Ruling of 1926 when determining game-related patent applications. The Ruling indicated that games are traditionally patentable, subject to objections such as lack of novelty.
However, when the question of traditional patentability was raised in the recent case of Shopalotto.com – concerning a patent for an online lottery game – the Court expressed surprise that current practice still relied on the old ruling. According to Mr Justice Pumfrey, a 1926 Official Ruling could not be a valid guide to the interpretation of the 1977 Patents Act.
Late last month the Comptroller General of Patents, Designs and Trade Marks therefore issued a Practice Note confirming that the Official Ruling will no longer be used in assessing the patentability of games.
Instead, games-related patent applications will be considered in the same manner as all other patent applications, by firstly identifying the advance in the art that is said to be new and obvious (and capable of industrial application) and then determining whether it is actually both new and not obvious (and capable of industrial application) in terms of the 1977 Act.
