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Can I patent a game?

The short answer to this question is 'no'.

The Examiners Manual states: "Games per se are not patentable being merely mental processes, abstract ideas or schemes. Applying the authority of the Full Federal Court in Grant v Commissioner of Patents [2006] FCAFC 120, Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 and Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177, a game does not become eligible subject matter merely because it is implemented with the assistance of cards, tokens or a games board which are characterised by intellectual information related to the rules of the game. Games apparatus may however be patentable where it has a practical utility other than merely allowing the game to be played."

For example, a Hearing Officer at IP Australia rejected Australian patent application 2018219972 relating to a roulette table layout. The application was made by Crown Melbourne Ltd. The invention was a ‘double zero’ roulette table which had a similar appearance and bet options to a ‘single zero’ roulette table. However, changing the table changed the wagering options. The application was rejected on the ground that the subject matter of the claimed invention is ineligible for patenting (i.e., is not for a ‘manner of manufacture’ under Australian law). Specifically, the Hearing Officer found that ‘merely presenting a different wagering space layout that does nothing otherwise to the functioning of the apparatus cannot be considered as a physical phenomenon or transformation’, which would have been required for the invention to be patent-eligible.

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