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Upper Deck (“UD”) sued a former employee, Ryan Miller (“Miller”) and a competitor, Ravensburger North America, Inc. (“Ravensburger”) over a “stolen game.” If you’ve ever read this blog, you know that game rules can’t be copyrighted. They can be patented, so UD’s claim that their game was “stolen” may prove correct. I’m going to try to answer the questions that people have addressed to me.
Facts
Briefly, UD employs Miller to design a trading card game (“TCG”). Miller sings an employment contract that contains a nondisclosure provision. Miller leaves UD, joins Ravensburger, and designs a similar game there. UD’s game hasn’t been released, but Ravensburger has publicly shared their ruleset for playtesting at conventions and has sold packs of cards for it (or so the complaint alleges).
I’m just going to deal with the intellectual property law issues because the question that everyone seems to be asking (me) is one related to IP: Is this a valid basis complaint in the first place? That’s a question I can answer without knowing both sides of the story. That is, I can’t say who’s right and wrong, but I can opine as to whether or not the philosophical basis of the suit is valid.
Trade Secrets: The Forgotten IP
Part of this case falls under trade secret law, which I address in this post covering all forms of IP. The defendant’s employment contract had a non-disclosure/secrecy provision, and that’s the basis of the suit. Game mechanics can be protected under trade secret law, which basically says, “Don’t tell anyone what we’re doing,” or “Don’t tell anyone how we do what we do.” This is very much unlike copyrights because copyrights often have little to no value unless they’re made publicly available. Trade secrets are valuable because they’re kept secret. One of the most valuable trade secrets in the world is the formula for Coca-Cola. If it were patented, it would be published, and thus have at most 17 years of protection. Instead, they keep it secret, so it has value for as long as it remains so. That’s an important point: Once a trade secret is made public, it can no longer be a trade secret. You can sue someone for publishing it, but you can’t put the genie back in the bottle. Once it’s out there, it’s no longer protectable. Ever.
So, the defendant in this case was (allegedly) bound by contract not to share the mechanics until after they were released by UD. It’s reasonable to infer that Miller must have shared those trade secrets when designing a game that was remarkably similar to what he did with UD. Miller and Ravensburger could argue that the similarities are ones shared by all card games, and so none of them are trade secrets. The complaint details the game mechanics, but I haven’t really read through them, so I can’t evaluate that defense.
Of course, even if those mechanics are identical to other games, this may not get the defendants off the hook. Games have several elements, so the difference between most games is essentially which specific combination of known elements you’ve chosen for your game. That combination may be unique. Even if not patentable, it may be marketable, and thus have value. If, for the reasons stated above, the sharing of that combination hurt UD’s market for the game, there’s still a lawsuit to be had.
You might ask, “How would it hurt the market?” Well, think about it. Games have limited shelf lives. Their first push in the market is often where they make their most money. If someone learns of your game system and publishes a quick-and-dirty version of it first, they’ll grab most, if not all, the market before your more well-designed version even gets there. Maybe you’ll enjoy a secondary push in a few years, but you’ll still have lost that first market. Also, the first game company to get their game to market can always accuse the other company of plagiarism. As for patent infringement, depending on the timing, a game company could actually lose their ability to patent a mechanic because the mechanic was published long before the application was filed. There are time limits on these things, so it’s best to keep your designs secret.
Patents
Of course, as I mentioned above, UD filed for a patent in April, 2023. I have no opinion as to whether that will be granted. Even after I eventually read through the game mechanics, there’s a lot of “prior art” (i.e., existing games) I’d have to analyze to form an opinion, and I’m not going to do that. I don’t play TCGs. Even if I did form an opinion, patent law is a tricky thing. There are very few obviously good or bad patents. My opinion wouldn’t mean squat; we’d have to wait for a judge’s decision, and then an appellate court’s opinion before we get a real answer. Either way, claiming that the game was stolen is at best premature. That’s not to say I don’t understand why UD is saying it. I’m simply acknowledging the basis for your confusion by that claim.
There’s far more to consider here than I could possibly address. I lack information and the desire to dig any deeper at the moment. The takeaway here, though, is that game mechanics can absolutely be protected by trade secret until they’re published. If the trade secrets are deemed valid, their publication by Miller and Ravensburger would constitute a legitimate cause of action for UD. We’ll just have to wait and see whether it sticks.
I’ll continue to go through the complaint and provide more information as I learn it (if it’s interesting). For now, back to work I go.
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