The EPO grants software patents on gambling methods — well, at least on their technical implementation. Although the actual rules of a game are excluded from patentability, a non-obvious technical implementation of such rules can indeed be patented in Europe, as the following decision shows.
The patent application at stake concerned an interactive gambling application (e.g. for playing blackjack or poker) for use with an interactive television:
The patent application aims at providing a method for carrying out secure offline interactive gambling. To this end, it is proposed to verify the result of the gambling application, which is controlled by the user, at a central gambling facility. Accordingly, the gambling application itself can be stored insecurely, thus allowing dispensing with more expensive secure memory for storing the application and therefore making it easier and inexpensive to distribute and update the gambling application.
This is what the board of appeal said:
From the reasons
4.1 The closest prior art is considered to be document D3 which, as discussed above (point 3.2), discloses a secure offline gambling system and method providing an interactive gambling application in which a user interactively provides a sequence of user selections in response to gambling input generated by a random gambling input generator, and thus relates to the same type of gambling game application as the patent application under consideration.
Document D3, however, relies on the security of the system being achieved by carrying out all operations which can influence the outcome of the game within the secure processor of the smart card so that the system is not susceptible to tampering, even when used in a non-secure environment. There is no central gambling facility, no transmitting of information to such a facility and no verification of the result of the gambling application at such a central facility.
Having regard to claims 1 and 11, by verifying the result of the gambling application at the central gambling facility, the gambling application can be stored insecurely, thus allowing dispensing with more expensive secure memory for storing the application (description page 17, lines 1 to 14) and, as argued by the appellant applicant, making it easier and inexpensive to distribute and update the gambling application.
None of the cited prior art documents address this problem or suggest the solution as claimed.
The gambling application as claimed relies on randomly generated gambling input from the user application (eg the “cards” provided in a poker game etc.). This input, however, should be tamper resistant, as any manipulation to this input could fraudulently affect the outcome of the game. In contrast, the lotto game of document D1 relies on the winning number being drawn centrally in a secure manner and thus places less stringent security requirements on the user application. As a consequence, D1 relies on the gambling application at the user to be sufficiently secure, at least for the smaller prizes. Accordingly, document D1 does not suggest the claimed solution.
4.2 Conversely, if either one of documents D1 or D2 were to be taken as the closest prior art, like in the decision under appeal, the basic difference between the subject-matter of claims 1 and 11 over D1 or D2 would be the provision of an interactive gambling application in which a user interactively provides a sequence of user selections in response to gambling input generated by a random gambling input generator and the storing of information comprising a log of the gambling input generated by the random gambling input generator during execution of the offline interactive gambling application and a log of the at least some user selections made in response to said gambling input during execution of the offline interactive gambling application.
As discussed above, these features are essentially occasioned by the different type of gambling game being provided and the ensuing different security issues.
It is true, that since rules for playing games are part of the subject-matter excluded under Article 52(2) EPC and thus considered “non-technical”, they cannot support the presence of inventive step (see decisions T 641/00 (OJ EPO 2003, 352) and T 1543/06). In the context of the problem-solution approach used for assessing inventive step this implies that they appear in the objective problem-to-be-solved as a constraint to be met.
The above claimed differences however do not relate to the rules of the game per se, which anyway are well-known (eg a poker game), but relate to the technical implementation of the rules of the game.
There is noting in D1 or D2 which would suggest the claimed implementation. The only available prior art implementation of an interactive game requiring a sequence of user selections in response to gambling input generated by a random gambling input generator is provided in D3, which however relies on a self-contained secure application at the user and thus differs fundamentally from the claimed solution.
4.3 Accordingly, the subject-matter of both independent claim 1 and 11, having regard to the cited prior art, is not obvious to a person skilled in the art and, therefore, involves an inventive step in the sense of Article 56 EPC 1973.
The bottom line
If you want to obtain a European software patent for a gambling or other gaming method, keep in mind that the rules of the game per se are not patentable. What can be protected is the technical implementation of the rules — provided that this implementation is non-obvious.
Read the whole decision T 1102/06 of 23 July 2009 here.
Originally published at www.europeansoftwarepatents.com on July 30, 2015.
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