Post
by MonMotha » Thu Sep 24, 2015 8:22 pm
Patents don't work like trademarks. You don't lose them because you don't use them, and using them doesn't let you extend them beyond a certain point.
Patents from the era of DDR would run for 20 years from date of filing in the USA, assuming they kept up with all the requisite interim filings and fees. I guess it's vaguely possible some of them were filed before the change in term on June 8, 1995 and would be for 17 years after date of issue which can be delayed via various tricks ("submarine patents"). We're approaching when they should all run out if they haven't already. As long as you don't infringe upon their trademarks ("Konami", "Dance Dance Revolution"), trade dress ("Show me your moves", possibly things like red/blue arrows or the overall look and feel of said panels and on-screen graphics, and, maybe, if somebody's feeling generous, general cabinet shape), or copyright (music and the game software itself, cabinet artwork), you could clone the game (changing the aforementioned) and sell a total workalike once those patents are expired. Heck, if you licensed the music (much of it was independent from the game), you could possibly even come up with a track list almost identical to early DDR. Interestingly, barring "submarine patents", the exhibiting of DDR in 1998 would be definitive proof that, by 2019 (20 years + the 1 year filing grace period after initial public disclosure), no part of that game is under patent since the exhibition is itself public disclosure and therefore prior art which makes it impossible to patent any part of that original exhibition later on (this doesn't mean it wasn't done, but it shouldn't have been possible).
Now, what they would be able to do is file NEW patents on NEW aspects of the game. However, they don't need to physically, publicly exhibit the claims to do that. In the good ol' USA, you usually don't even have to show that what you're claiming is even physically possible, let alone that you've done it. You can simply file a patent that claims whatever idea it is that you had, banal as incremental improvements to DDR may be, and (assuming the USPTO agrees with you) get yourself a shiny new patent.
This does bring up one little thing they do gain from loctesting this stuff. It has been publicly exhibited, as of the loctest, in the USA. This would prevent somebody ELSE from patenting any new pieces of the game in the USA since the loctest is public disclosure and therefore prior art as far as future patent submissions are concerned. I'm guessing Konami doesn't pursue US patents as aggressively as they do Japanese ones. They'd certainly not want somebody patenting their game out from underneath them. This kinda-sorta happened with DDR/PIU and is likely to be one reason why there was such a hiatus of arcade DDR in the USA. Full on loctesting with localization seems like an awfully expensive way to go about that. All they'd really need to do is just reasonably conspicuously publish technical details or make available for inspection a sample of the game. Even just carting an unlocalized machine over to a friendly venue in California for a few days and letting people ooh and ahh over it should very definitively do the trick, especially if they publicize it in some local media.
It's worth pointing out, here, that I'm not a lawyer, and I'm certainly not your lawyer. I don't even play a lawyer on TV (and I have, in fact, been on TV). It's possible the above is complete hogwash, but it is, as far as I know, correct.
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