Patenting Games: Baker v. Selden Revisited

Patents are meant to protect the functional aspects of an invention. But patents, particularly patents on processes or methods, can cover non-functional, or expressive, activity. This Article explores this possibility in the context of patents covering games of various types. Patents on games can cover the actual play or use of a game with consequent implications for user-generated content produced by playing games. The Article documents this possibility in the area of fantasy sports and video games and proposes two solutions. The first solution relies on the Federal Circuit's recent decision in In "re Bilski," which restricts the patenting of processes that produce social transformations, and explores the implications of this case for patents on games. The second solution draws on the Supreme Court's decision in Baker v. Selden, a precedent associated with restrictions on copyrightable subject matter that purported to establish a boundary between patent and copyright. Consequently, the precedent has implications for patentable subject matter as well as for copyrightable subject matter. The Article concludes that the precedent of Baker v.Selden excludes functional subject matter from copyright protection and non-functional, or expressive, subject matter from patent protection. Therefore, patents on processes should not extend to the non-functional uses of the invention, such as the actual playing of a game by users of a patented game.