T 0686/22 - Does the Board play games?

Key points

• The applicant is Nintendo.
• "The [claimed] apparatus [i.e, the gaming device] ]is provided with a restriction process means which restricts the number of players permitted to play a multi-player game when the apparatus display means is used rather than an external TV"
• "In its [preliminary opinion] the Board discussed for the first time the Nintendo Wii U system with its Wii U game console and Wii U GamePad operator device as prior art, in particular with reference to Nintendo customer support documentation for a Minecraft game, available on-line at the time of writing the communication. The Board will refer to this collectively as D4."
• The Board refers to "https://en-americas-support.nintendo.com/app/answers/ detail/a_id/15831/~/how-to-start-a-multiplayer-game-%28minecraft%3A-wii-edition%29#:~:text=How%20to%20Start,mode%20will%20begin" (a page that no longer exists).
• From the preliminary opinion:  "the appellant-applicant will undoubtably be aware of the Wii U game console (released 2012) with its Wii U gamepad. The Wii U gamepad has its own screen which can be used to display game play. It can also be connected to an external screen by HDMI cable. Therefore, it has an output destination control means. Like D1, the Wii U console also supports multiplayer games. According to the Nintendo customer support, Minecraft on the Wii U (released December 2015, thus at least a month before the relevant date of the present application) has a multiplayer split screen mode which is only supported for a [larger] HDMI external screen connected by a HDMI cable. Whist [sic] the Board realises that the above customer support information is not prior art, the Board has no reason to doubt that the Wii U playing a minecraft game would have been the same at the relevant date. " (square brackets added in the decision).
• "The subject-matter of claim 1 differs from D4 in that, when the restriction is in place, that is when the game is played on the display means rather than the TV, multiplayer play is not performed by players exceeding a predetermined number of players. Because this claim feature is concerned with multiplayer play, it is implicit that the predetermined number of players is more than one (cf. D4's restriction to a single Minecraft player). For example, according to the invention it could be two players in accordance with the number of [two] operation devices (cf. published application, paragraph [0026])."
• Hence, compared to D4, no longer only single player mode is available on the Wii U game pad, but also a limited multiplayer mode.
• The Board considers the feature to be not inventive.
• "the idea of restricting the number of players permitted to play a certain game according to the screen used (display or TV) determines how gameplay is permitted to develop and thus lies firmly in the domain of the game designer who conceives the game. The game designer will make this choice based, amongst other things on the screen area and screen resolution needed for a player to comfortably view the content of a particular game. Moreover, the players will be well aware of the game designer's choice in this respect: They would know that using a certain screen determines how many players can play the game. Thus the Board considers that a game rule underpins this feature."
• "the Board adopts the approach as set out in T 1543/06 (Gameaccount) which is based foremost on T 0641/00 (Comvik, OJ EPO 2003, 352). Thus, only those features that contribute to technical character are to be taken into account when assessing inventive step. That requirement cannot rely on excluded (non-technical) subject-matter alone, however original it may be. The mere technical implementation of something excluded [under Art. 52(2), i.e. a game rule] cannot therefore form the basis for inventive step. Rather, it is necessary to consider in detail how that matter has been technically implemented."
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EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

https://www.epo.org/en/boards-of-appeal/decisions/t220686eu1

3.2 In its communication (point 4.1), the Board discussed for the first time the Nintendo Wii U system with its Wii U game console and Wii U GamePad operator device as prior art, in particular with reference to Nintendo customer support documentation for a Minecraft game, available on-line at the time of writing the communication. The Board will refer to this collectively as D4. The relevant part of the Board's communication read as follows:

4.1 Amongst other prior art tablet devices, the appellant-applicant will undoubtably be aware of the Wii U game console (released 2012) with its Wii U gamepad. The Wii U gamepad has its own screen which can be used to display game play. It can also be connected to an external screen by HDMI cable. Therefore, it has an output destination control means. Like D1, the Wii U console also supports multiplayer games. According to the Nintendo customer support, Minecraft on the Wii U (released December 2015, thus at least a month before the relevant date of the present application) has a multiplayer split screen mode which is only supported for a [larger] HDMI external screen connected by a HDMI cable. Whist [sic] the Board realises that the above customer support information is not prior art, the Board has no reason to doubt that the Wii U playing a minecraft game would have been the same at the relevant date. https://en-americas-support.nintendo.com/app/answers/ detail/a_id/15831/~/how-to-start-a-multiplayer-game-%28minecraft%3A-wii-edition%29#:~:text=How%20to%20Start,mode%20will%20begin.

FORMULA/TABLE/GRAPHIC

3.3 Neither in writing nor at the oral proceedings did the appellant-applicant comment on the status of D4 as prior art. Therefore, the Board confirms its preliminary opinion that the Wii U system and how Minecraft is played on it constitutes prior art.