Blurring Lines in Video Game IP Protections: Copyrights, Trademarks, and/or Patents for Gameplay Mechanics?

Key Points

• Copyright and trademark protect how a game looks, sounds, and is branded, but they were not designed to protect how a game plays. 
• Larger, well-resourced game publishers are leading a shift toward patenting gameplay mechanics because cost is less of a barrier and disclosure matters less when official modding tools already open their code and systems to the community. 
• Because a patent lets its owner exclude others for 20 years, roughly three console generations, whoever files first on a gameplay mechanic could lock down an entire game genre before it has a chance to grow. 
• If the owner of an original game asserts patents against mods and the games they inspire, entire modding communities could be at risk, even though many genre-defining games began as mods. 
• Smaller developers and modders are not defenseless: patenting their own novel mechanics (a “sword”) and building a dated public record of prior art through demos and early access releases (a “shield”) can help them keep building in a genre, even if it cannot guarantee immunity from patent litigation.

The Traditional Toolkit

The video game industry has traditionally relied on copyrights and trademarks to protect its work. Famous characters, logos, slogans, and names were protected under trademark law, while stories, artwork, software, and code were protected under copyright law. Copyright law protects “original works of authorship fixed in a tangible medium of expression” — the artistic and literary expression found in a game’s visuals, music, code, and story. Trademark law protects the names, logos, and branding that identify and distinguish the source of goods or services.

Historically, the “rules of the game” or “mechanics” sat largely outside ownership, treated like genre conventions. It has been a well-accepted fact that many different games start from the same or similar fundamental rules. In card games, “trick-taking” games all begin from fundamental principles, but depending on where you’re from, you might be more familiar with hearts, spades, or euchre. Similarly, depending on your generation, a game where players roll two six-sided dice and collect a payout when the total matches a spot they have claimed on the board might call to mind either craps or Catan. Video games followed the same pattern: several platformers shared common mechanics, but the most successful ones, such as Super Mario Bros. and Donkey Kong, stood out for their distinctive styles, compelling stories, and iconic characters.

A New Player at the Table

Copyright and trademark were never designed to protect how a game plays — only how it looks, sounds, and is branded. But patents can fill that gap: a functional mechanic, not just the code implementing it, can be patented if framed as a novel process. As such, patents can protect novel and non-obvious advances in technology for 20 years starting from the date the patent application is filed.

Yet for most of the industry’s history, game developers left that gap open, viewing patents as an unappealing way to protect their work. Game mechanics change during the development process, the patenting process is lengthy and expensive, and the resulting patent document must explain to the public how to recreate and reproduce the patented technology. For a fast-moving industry where a game’s core differentiator is often its aesthetic distinction from all the other games on the market, the capital and time expense required for patent protection far outweighed the minimal benefits of protection, which was itself limited by the requirement to publicly disclose the technology.

That calculus is now changing, and larger, well-resourced publishers are leading the shift toward patenting gameplay itself. Cost is less of a barrier for them: the growth of software patents over the last two decades has shown that companies with capital are willing to invest in patent prosecution and litigation. Disclosure matters less, too. Through “modding” and developer toolkits, larger platforms already open their proprietary code and systems to the community so that players can generate content and carry the brand into the zeitgeist — in effect, outsourcing development to the community. Because much of a game’s inner workings are already public through official modding tools, disclosing them in a patent application carries little downside. And if the patent can be framed as a novel and non-obvious “computing device” that executes the relevant game mechanics, the studio stands to gain enforceable exclusivity over the mechanic itself.

In 2025 and 2026, this was demonstrated through several high-profile patent enforcement actions brought by a large gaming company holding patents covering a main player-character summoning a secondary side character. More disputes may follow. As a result, genre conventions that once felt like shared industry vocabulary may now carry latent IP risk.

The Innovation Trade-Off

The rush to patent gameplay threatens to chill entire genres, as developers grow wary of building in popular subgenres for fear of stumbling into someone else’s claims. Games have long sorted themselves into genres named after the titles that pioneered their mechanics — the “rogue-like” genre takes its name from the 1980 dungeon crawler Rogue, and the “souls-like” genre from the punishingly difficult Dark Souls series. More recently, the battle royale, looter-shooter, and the newly coined “friendslop” genre (casual, social co-op games built around hanging out with friends) have exploded, each spawning hundreds of titles. Some are cheap knockoffs; others are genuinely groundbreaking. But a patent lets its owner exclude others for 20 years — roughly three console generations. In practice, whoever files first could lock down an entire genre before it has a chance to grow.

This creates a genuine tension between rewarding innovation and discouraging the iterative creativity that has historically driven the industry. A patent is a moat available to any inventor who files first: a small studio can use one to stop a better-funded copycat from cloning its breakout mechanics, and a large publisher can stack a portfolio of them to wall off an entire genre. Either way, the same protection that rewards the original idea also blocks the imitation and iteration that turn one hit into a thriving genre.

That imitation and iteration often start with modding. Many genre-defining games began as “mods” of other games, and the irony is hard to miss: the same official modding tools that leave large publishers with little left to lose by disclosing their technology in a patent application also feed the pipeline that patents now threaten. If the owner of the original game asserts its patents against the mods and the games they inspire, entire modding communities could be at risk. And as well-resourced studios wall off more of a genre, compelling characters, iconic art, and memorable soundtracks may no longer be enough to carry a game. The independent developers who have long driven the industry forward — and spawned entire genres of their own — risk being crowded out altogether.

Sword and Shield: A Practical Framework

With studios pushing teams through months of mandatory overtime to hit release dates, development cycles growing longer, costs skyrocketing, and more games failing and shutting down, the last thing developers want to hear is that they need to add yet another task — managing patents and invention disclosures — to development. But ignoring patents now carries real risks: a developer without patent protection may have limited recourse against competitors that copy its breakout mechanic, and a developer that never looks at the patent landscape may build a game around a mechanic that someone else has already patented. Addressing those risks does not require a full-scale patent program that monopolizes developers’ time. It requires a sword to protect what a developer creates, a shield to defend against others’ patents, or, better yet, both.

The sword is about owning what you create. It means treating mechanic design decisions as IP decisions, not just creative ones; flagging genuinely novel mechanics early and considering whether they are worth patenting; and getting legal and design teams talking before a mechanic is locked in, not after it ships.

The shield is about staying free to build. A mechanic that has been publicly demonstrated, used, or sold becomes prior art — a dated public record that can be used to challenge later patents on that mechanic or obvious variations of it. Public demos and early access releases create that record. But timing cuts both ways: public disclosure also starts the clock on the developer’s own ability to patent the mechanic, so the sword and the shield should be planned together. Patent landscape searches, which are far cheaper and faster than patenting, help developers spot where a mechanic could run into someone else’s patent before the team invests heavily in it. None of this can guarantee immunity from patent litigation, but it gives the developer ready-made defenses, and a patent owner facing a well-documented record of prior art may decide that a claim is not worth bringing.

Knowing when to draw the sword, when to raise the shield, and how to do both without breaking the budget is now a core competency for studios of every size — whether you’re a solo developer prototyping your first title or a publisher with a decades-deep catalog to defend.

For questions about protecting gameplay mechanics or assessing patent risk, contact the attorneys in Troutman Pepper Locke’s Intellectual Property Practice Group. We help developers and publishers identify and protect novel mechanics, assess patent landscape risk, and respond to third-party patent claims.