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Ironically, this subject popped up in another thread recently. I have searched the web and cannot find anything conclusive so I ask that my better-educated fellow forumites lend my their expertise.

- To what extent must the would-be infringing product be different in terms of gameplay to avoid falling victim to patent-law? Would being 3D suffice?
- How long is the maximum time period a sofware patent can last with regard to gameplay.
- Does the intended license of the would-be infringing software have any effect on the decision of the patent holder on whether or not to persue legal action (I ask since their are many free Linux games closely resembling Famicom classics such as Super Mario but, to my knowledge, the developers have not been sued).
- Finally, how does one track down a patent-holder if the company is dissolved? Or does one assume that the patent is NULL? In this case, other companies have produced derivative works since the original company's demise.

I ask because I had a great idea the other day. It would be easy to make and surely a decent seller -- or enough just to get me some things I can't afford but unfortunately need. Sadly the game is similar to an existing classic in gameplay. I believe I could prove it a different game the way two top-down 2D shooters would be in spite of similarities. In any case, I'm just looking for some opinions from developers in the market or people with legal knowledge, thanks.

Gameplay cannot be patented.

Edit: Okay it seems it can - I thought otherwise. Discard this.

You can patent anything. I have a patent on humour but nobody takes it seriously.

How about to patent chess? ($_$)

Patents on software are extremely controversial. Nobody really knows what is possible in terms of protecting it. Many people have strong opinions but that doesn't make their opinion right Even courts struggle to agree.

So...this is why IP (Intellectual Property) is more dominant. You can make Super nonZerio Karts (potentially) but you can never put Mario into your version. HE is well and truly the IP of Nintendo, with the full force of the law behind him. So anyone who wants to race the cute little Nintendo characters can only do so by getting the original version rather than yours. Even infringing on the likeness of Mario will get you in hot water.

I only know this because I went to a patent lawyer many years ago who told me I need to spend inordinate amounts of money on a brand to make my IP far more valuable than the competition. Some people prefer Rola-Cola, but everyone talks about Coca-Cola because the marketeers have done their job.

Thanks for the response. The game isn't going to include any existing characters (as it would be suicidal) but there's an old game whose gameplay style was inspiring because in spite of being an action platformer, it required the player to exanine a situation and use strategy over brute force or button-dancing to make it through in one piece (what I loved about older games was their demand of strategic thinking). Amyway, I'd be up to doing something that'd be inspired by that game. Mine would have a few more elements and probably be in 3D. I know a lot of 2D games brought into 3D were monumental failures but this could work. I have a few people I can use as a test group so everything is in the bag. My only worry is the legal issues since this seems a very murky pond. I suppose could try fast-proto'ing a demo and see if I got a Cease and Desist letter (although I may get something worse). Perhaps I'll have to place this on hiatus for now. A pity since my other project (not a game) is going to take more debugging and testing. Man I really want to hurry up and get developing and writing seriously for myself so I can quit my mundane and unstable self-employment (especially dealing with rude customers).

I don't think anyone here could answer those questions, unless we have practising patent lawyers on the forum. The law regarding software patents changes quite a lot, so even if somebody here has studied patent law at degree level their knowledge is probably out of date by now. You need to ask a lawyer. Are there forums for this sort of thing?

From what little I know there is a vague clause against, "deriving source code from an existing product", but I don't know how to interpret that. I don't know whether writing original code that reproduces the same effects as proprietary software would be illegal.

The whole patent system seems bizarre to me. How can writing software be breaking the law? Software is written to solve particular problems, these problems exist universally and so it's natural that many people will stumble upon the same solution, so what right does one person have over another simply because they found the solution first? I can understand protecting something like a book that isn't created for utility, and I can understand the need to prevent fraud and counterfeiting popular brands, but giving one company the sole rights to use a mathematical formula or a set of instructions seems totally ludicrous. I always bring up the case of calculus, where both Newton and Leibniz created calculus independently and argued over who should get the credit; that whole saga could easily have been a landmark introducing the creation of mathematical patents. Just imagine what a mess we would be in if that happened, and how badly it would stifle progress if we all had to buy a license to learn and use calculus and pay royalties for every project that uses it (which is a hell of a lot of things from software to engineering and construction).