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This is a question that has bothered my for some time now. This question is not about copyright or trademark law, the example would be a clear violation of that.

This is the example:

If I write a program to simulate the gameboy color game pokemon in a HTML5 based way and I use all original code designed, developed by me without using any code from a 3rd party. Would it still be subject to any patents nintendo would have on displaying/processing information etc... in the game even though it would be all original self made code with own thought up solutions that have a different or the same way to get to the same result?

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Actually this would avoid copyright issues with the code itself. Characters and other game aspects will be copyrighted and trademarked but this is how one gets around copyrighted code. –  George White Sep 13 '13 at 21:00

2 Answers 2

up vote 4 down vote accepted

Nintendo (or any other software manufacturer) can benefit from several forms of intellectual property protection to prevent copies and imitations, including utility patents but also design patents, trademarks and copyright. Besides intellectual property protection, other protections exist including laws against unfair competition or parasitic copying.

Utility patents cover inventions. To obtain such a patent, Nintendo will have to file an application and be the first to solve a given problem in a non-obvious way to the skilled of the art. First being understood as based on what is published and disclosed at the time of their filing.

If you reproduce a software (i.e. a game) without access to the source code you might still violate a patent if you solve the same problem and come up with the same solution.

Coming with the same solution could happen because the technical solution invented by the original author was revealed, even without access to the source code. You could have reverse engineered the software, or the solution could simply be revealed by using the original software. Please note that non-obvious solutions often seem obvious when disclosed.

Coming with the same solution could also happen by chance. Yet this would also be a violation. If you came with the same solution independently, it might be easier (in case of a lawsuit) to find prior art and eventually invalidate the patent. Indeed, in such a scenario, it is more likely an obvious solution at the time of filing. But the fact that you came with the same solution is no proof of obviousness.

The only way to not violate a patent is to come up with another solution of the problem. If you knew which patents cover the software, you could engineer your other solution to circumvent the patents claims.

Of course, as you mention, simulating the gameboy color game Pokemon in HTML5 will likely violate copyright and trademark.

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Thank you! That is a clear and complete answer. The most meaningfull I've seen covering all the aspects. Thank you for your long and comprehensive answer. –  Michael Dibbets Sep 18 '13 at 13:21

Yes - a very simplified way of thinking about it is that patent laws are set up to cover "what it is and how it works". Accidental, unknowing, independent invention is not a defense for patent infringement and re-implementing something you know is patented is worse.

Designing around a patent is fine, and in some ways is encouraged. The difference is you have studied the patents in question and find a way to provide the same or similar user benefit without stepping on the exact requirements of any of the patent's claims.

What you suggest is what people do to be free of copyright problems. Copyright (I am a layman with respect to anything but patents) protects a particular expression, not the underlying idea or information. And it protects that expression from being "copied". If you could prove you accidentally, independently, wrote the exact same thing as something copyrighted (almost impossible) then you are not copying.

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Thank you for clarifying that developping around a patent is allowable to, to find a different solution to fix the same problem. Thanks to your answer I now understand that patents are about "registering a specific way to solve a problem" –  Michael Dibbets Sep 18 '13 at 13:22
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In Europe, Japan and many other places patents are looked at as problem / solution. In the US we look at as a defined, usesful, structure. Although specific, the definition of the "structure" can be worded broadly if nothing close to it has been done. If it is a crowded area the definition of the claimed structure or steps will need to be more narrow. –  George White Sep 18 '13 at 16:25

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