The Game of Patent Law

I am in a very weird place. I must admit that I have not been in the brightest of spots. I am struggling with this semester’s subject. Even now, I am still studying too. I stopped writing on notes and going over lectures because I needed a small break and because my mind has been telling me stuff I did not even realise.

You see, this all started on two parts. The first was ‘Person Skilled in the Art’. I looked at it from many sides, but I forgot, no, lets state, I did not completely comprehend the legal part in all this. You see, Wiki tells us ‘If it would have been obvious for this fictional person to come up with the invention while starting from the prior art, then the particular invention is considered not patentable’, which might not be the most academic view, but when we consider the more ‘academic’ part we get “In these fields the persons skilled in the art are not just skilled artisans. They are often trained engineers and scientists, who are well versed in the periodical literature of their subjects“. This we get from the case Sunbeam Corporation v. Morphy-Richards (Australia) Pty Ltd [1961] HCA 39; (1961) 35 ALJR 212. Here Justice Windeyer referred to this in [218] “scientific inventions, intricate mechanical arrangements, chemical processes, electrical and electronic devices and so forth

You see, part of this is my issue (truly an issue I have). It comes in two parts. The first one is a memory from my early secondary education. We once had a discussion on Art versus conceptual art. It never made sense to me because I regarded both pieces as art. In some view we see that conceptual art focusses on the involved idea in the work takes precedence over traditional forms and material concerns. But is that true for some? Art is art no matter how you slice it. This has been in the back of my mind for a few days. At work in the last week I would listen to the soundtrack of Mass Effect whilst working on parts I was working on. I thought I was just trying to listen to music. No! My mind was kicking into high gear trying to make me see something and after this weekend, after 16 hours of re-listening to lectures and retrying to do what I could not do before, at roughly 10:18 it hit me! It was all connected, I suddenly got the gist in a scary way (because I get a first glimpse on how to solve it).

I need to get back to that ‘skilled person‘ because that is actually at the centre and it all links back to mass effect. In my view Mass Effect is one of the most brilliant pieces of work, possibly ever! The story is captivating, the graphics are amazing and the entire project is out there and I mean out there on the far horizon. Most gaming (me inclusive) always seek to look to the next challenge, the next big game. We almost forget the great games that got us here. Yet, Mass Effect always remains. My Google+ profile still has the launch party photo. In all this, the game was a breed apart.

So, how does this relate to the law?

This is part of the issue I have, especially with Justice Windeyer stating “In these fields the persons skilled in the art are not just skilled artisans. They are often trained engineers“. This has been my issue for a long time. You see almost two years ago, I wrote the concept for Elder Scrolls 6 (Restoration) and send it to Bethesda for their consideration. Not just more or an addition, no an entire new approach. In that same way I have bene able to reengineer in my mind every game I ever played. Now I am not a programmer, so making it is another issue, but my mind can see the game. Improve upon it, mould it into more, within my mind. The ability to see past the game, into the engine, the design and the story has been forever with me. Which was also the part that is stopping me. It is in essence the issue I have had with Ubisoft and Yves Guillemot regarding the dwindling of the Assassins Creed franchise. That is not even addressing the issues (read glitches and bugs) AC Unity and Far Cry 4 has been subjected to. AC Syndicate is now less than 4 weeks away and its predecessor have given a massive blow to the franchise. I saw some of these issues for a long time. Many things have been in there for 5 generations of the Creed, so if I can spot them, why can they not do so (or fix them before release for that matter)?

You see, here we get the PSA, here I get the block that Justice Windeyer (et al) bestowed upon me.

This is exactly where my problem is and yes, it is just me. I am not blaming anyone else. I never truly understood ‘Person Skilled in the art‘ (yes, it took me a while to figure that out), which means the rest became up for grabs. Yes, I comprehend the definition and I understand the premise, but when you can reengineer whatever you see, you (in this case me) tend to miss the point.

Now, in that continuation, how can one dissect “a pair of spaced apart slots in the first end portion each slot extending from an edge of the first end portion to half way across the first end portion; the slots being parallel to each other so that they and their projections define a pair of parallel axes extending across the first end portion, along the sides of the stem and across the second end portion” In case you were wondering, this is part of the description for an applied sheet of metal (I never knew my mind could project so many question marks).

Here I see myself like in Abbott Laboratories v Corbridge Group Pty Ltd (No 2) [2001] FCA 810. At [56] we see “I regard Professor Guilbault as quite unlike any person in Australia for the purposes of this case.  He is, and was at the priority date, a real expert in the field. What may have been obvious to him gives no indication as to what would be obvious to the ordinary skilled but non-inventive worker, even leaving aside geographical considerations“. You see, my ego rejects that part, because I am not a professor, I never considered myself to be ‘unlike any person‘, yes I consider myself to be an expert when it comes to games, but not to the extent the case made Professor Guilbault to be in his field, which gave me the issue of not grasping the level of the skilled person.

I am catching on (even though some parts are still really hard), but I have the rest of the day and 5 evenings to catch up with what I was not grasping. I am getting there though!

It still is an issue on how to set certain things, which is why my timeline differs. All this now shifts back to the games. I spoke about Mass Effect. The first game had an issue with the drive, but when we consider the first 360 systems (some people relied on a console without a hard drive, go figure). They got to play the game. The game was also one of the first to be decently open world, so that means that certain trigger points needed to be created. Which is what we saw in Fable 2 and 3. When you realise this, you can work around them. They are of course games and not real life, so the point shifts. Yet, in all that Mass Effect had an issue with achievements it never really fixed. I ignored it (but was a little miffed to miss out on achievements I should have gotten). Mass Effect (apart from the glitches) made a game truly replayable, which makes for more joy, yet unlike Fable 2 it did not create cosmetic alternatives. In all that, who (without cheating or hint guides) knew you could get to see Tali? Mass Effect 2 went even further in all this even as the game is still mostly the same, you can replay in another role giving power to replayability. Mass Effect is one of the only series ever to pull it off to this extent. So, yes, Mass Effect had issues (and glitches), yet the overall issue people had was with the ending. I less so when you realise the story in its totality, but the last one was a little sloppy in places. I saw through all that. So am I a nagger, a person skilled in the art, or am I beyond that? I have been around since before the VIC-20, so I know my games. In all that Mass Effect 3 amazed by offering the best multi player environment I have ever participated in (still not surpassed today).

Here is the kicker where does that leave the other game designers? In the mind of many we see that good gaming might start with replication, but the visionary evolves that into innovation and offer something totally new, something we all desire to play. I think the game Evolve is almost there. It is close to what Mass Effect 3 was, which is also dependent on a great AI and even though the levels in Evolve are bigger, you are still basically in a ‘cage’ with the big nasty. In all this Ubisoft is not sitting still. Although no personal evidence at present, as far as I can tell, from what I saw their new upcoming title ‘For Honor‘ is showing to innovate multi player from what was into what others desire. This is a very good thing! Jason VandenBerghe seems to have figured out what the big players were either not comprehending, or basically were ignoring. Now I am not one for hack and slash, I am not one for melee games, but I can stare in awe at the achievement of innovative gaming. This is what we will get in 2016. Perhaps Sean Murray (No Man’s Sky) wakes up one morning and realises that keeping people in the dark is only short term acceptable, but that is a lesson he must consider by himself.

Back to the innovators. One of the considerations with a person skilled in the art is: ‘A PSA would be likely to access and search IP Australia’s patent and design databases or get someone qualified to do it for them before releasing a new design of a ladder into the marketplace even though the level of technology is relatively low‘, this could be shaped into ‘A PSA would be likely to access and search IP Australia’s patent and design databases before releasing a reengineered design of a ladder, sufficiently distinct from the original into the marketplace as an innovative patent regardless of the level of technology required‘. In my mind I wonder how much power those with the ability to reengineer can hold, those who can see and value the originals for what they are. It is a legal trap to some extent, because the patent has protection under ‘they are more similar than dissimilar’, the registrar will take that into consideration and when it does go to court it will be an issue to argue, which is why I foresaw the evolution of mobiles, not in hardware, but a mobile generic base that is not unlike a stem cell approach, the software will shape the actual device and now we have two issues. Many nations are not have or reject more often software patents. Some state “The rapid decline in software patents is a huge boon for innovation“, yet in hindsight, there is another issue. Yes, I am all for innovation and bring it on, but not unlike Assassins Creed Unity it becomes more about the now and more about the quick sale and not about the quality of aftercare. As we move from a quality product to a short term choice, how do we fare? Is your budget ready for the annual purchase of a mobile? This is linked to all this, it is not just the Person Skilled in the Art, or the Person Skilled into the reinvented art. As we move from art to conceptual art, we also move from the finality of a choice to the transient of what might not become (again that assassins game comes to mind). All these elements move us in a direction that I regard as dangerous, we move from creators to innovators. Which was always intended to be a move that evolves into true new creators. No, now we move from creators to cheap solutions, something patents were never supposed to do, the person skilled in the art is the push we did not tailor to. I am evidence of that. I could never keep up with Richard Garriot or Peter Molyneux. Even when we spoke I saw their minds moving on to really new things, not iterations of the ‘what is now’. That is what corporate greed got us. A move away from the future. Even if we consider the computer as hardware, the timeline from the 8088 to the I7 now. The processors are no longer truly new, just slightly faster. A market controlled desperate to hold on what they have and not to lose it. That is not how the 80286 came to fruition, in that Mass Effect from game 1 trough game 2 to game 3 made jumps, not mere steps. You only have to replay the first one and the second one to see the leap we got. Assassins Creed showed the same in the original and 2, what came after became steps towards iterative work, iterative work is not innovative, which is why the small indie developers must be protected, if we are to move forward we have to protect true futures instead of orchestrated options.

Here I am still deliberating Person Skilled in the art where Lord Diplock states ‘a patent specification is a unilateral statement by the patentee, in words of his own choosing, addressed to those likely to have a practical interest in the subject matter of his invention‘ and the subsequent resolution by Lord Justice of Appeal Waller ‘a man concerned with the construction of a steel lintel to whom the use of the word ‘vertical’ would indicate precision‘. Here I find the issue with both parts, the second might be overruling the first, but the protection, or at least the approach from a malicious side gives pause to vertical could imply accepted to be ‘cheaper’, for if the engine is not tuned to be finer, it will be constructed to be cheaper, life has shown us that in the iterative part, which is part of the mess we now face. In my view the law must lead but it adheres to the view of those who get to speak, which are the people who have the established base of wealth. The true innovator who moves to creation is never that, so the future is tainted by those who have, they either own those who try to push forward and they then adjust the push for maximum wealth, or they buy out those who they do not owe and again they get to control the product.

The game of Patent Law is harsh, difficult and rewarding, because Patent Law was to be a fair field and in that it still is, the world around the law has changed. I am still trying to get the materials and pass this subject, but I also wonder, what can the law do to keep the field fair? In my view, the law has addressed some parts, but the issue where innovation is too often replaced with iteration (pharmaceutical patents for example), how to address that part?

Well I am off to lunch and after that redo my parts on infringements, which would go further if I did not get stumped by texts like: “Further, because the edges at either end of the column neatly align with one another a plurality of such columns of the same height can be suitably employed on an even surface to stably support various objects including a coffee table top or barbecue plate without rocking, for example. The column structure can also be used by itself as a tree guard“.

Life might be a game, but patent Law is not the clearest of rule books to define it by.

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