Pay to Play: Video Game Monetization Patents and the Doctrine of Moral Utility

Cite as: 5 Geo. L. Tech. Rev. 72 (2021)

Video games are now more complex and realistic than they ever have been—but making those games is not cheap. Video game development and marketing costs are sky high.1 To help recoup these costs, game developers and publishers have begun inventing increasingly clever ways to encourage users to spend more money on video games—and they are pursuing patents for those inventions. One recently granted patent seeks to drive in-game purchases by making multiplayer matches difficult for a player, encouraging that player to buy an item and, once that item is purchased and used, subtly rewarding the spending by making multiplayer matches easier.2 Another recently granted patent targets players more likely to spend money in-game by presenting them with exclusive spending opportunities, maximizing value from users inclined to spend.3 Despite their ingenuity, such video game monetization techniques remain controversial: according to some psychologists, video game monetization techniques are predatory and may lead to addictive behavior akin to gambling.4

This raises the question: should the U.S. Patent and Trademark Office (USPTO) deny patents to video game monetization-related inventions on the grounds they might deceive users or harm their psychological well-being? In particular, should the USPTO revive the now dead “moral utility” doctrine, pursuant to which inventions were once considered patent ineligible if found to be “immoral”?5

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Kirk A. Sigmon

Shareholder, Banner Witcoff.