The Reality of Patent Expirations for the NES

Tashimojo writes "Gamasutra's running a feature entitled 'Nintendo Entertainment System - Expired Patents Do Not Mean Expired Protection', an interesting read. From the article: 'This article originated when the Gamasutra editors noticed a number of online sources such as Wikipedia stating that it was now completely legal to make NES 'clone' consoles, because all of Nintendo's patents regarding the NES had expired. How true was this statement? We asked game IP lawyer S. Gregory Boyd the question: Are the NES patents expired? If so, is a company free to build and sell new NES-like systems?'"

Re:ROMs?

[Anonymous Coward]

No. The games are copyrighted, and as such will last for all eternity (more or less.) Nice try, though.

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[account_deleted]

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Re:ROMs?

[linguae]

Not until 2080, unless the MPAA/RIAA^W Congress extends copyright again.

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Re:ROMs?

[MichaelKaiserProScri]

Well, no. But you COULD play your legally purchased Nintendo cartriges on a no name clone of the Nintendo console, provided that the console did not call itself a "Nintendo", "Nintendo clone", "NES", or "NES clone". The terms "Nintendo", "Nintendo Entertainment System", and "NES" are trademarked. Nintendo could potentially sue over the use of these terms. But the hardware itself is generic.

Phoenix BOIS

[glengineer]

Because Phoenix (remember Phoenix BIOS ??)went and legally reverse engineered the BIOS, and licensed them, and Michael Dell and that pony-tailed Gateway2000 guy made a lot of money and hired a lot of smooth talking lawyers.

Keeping an eye on the money...

[jd]

It's not bad for Nintendo to keep an eye on the money, but the patents (AFAIK) refer to the hardware (which Nintendo makes nothing from, today) not to the software (which Nintendo MIGHT make money off). The software is still covered by copyright, so the patent stuff is a non-issue there. The hardware is NOT covered by copyright, so the copyright stuff should be a non-issue there.

Producing a binary-compatiable console that is hardware-compatiable to the NES should (by anything remotely approaching fair and civilized rights) be legal, especially as Nintendo would still be making money off all the things they still make money from. However, the US is dubious on both counts, so don't count on it.

Re:Remember Compaq?

[Waffle Iron]

If they could clone an IBM, why can't people clone nintendo?

There were several reasons:

• Software patents were extremely rare in the early 1980s. Nobody would have bothered patenting something as boring as the BIOS.
• The IBM hardware was little more than an Intel demo board reference design plus a few assorted kludges thrown together by some recent college hires. Back then, people tended to think that you needed to actually do something clever to get a patent, so IBM didn't really patent much of the PC hardware.
• Much of IBM's top management thought that the PC was a toy in the first couple of years. They just didn't care that much at first.
• IBM at the time was operating under a restrictive terms from their decades-long anti-trust case. One effect of this was that they didn't really push too hard on any patents.
• In the mean time, Compaq collected some valuable patents on enhancements they added to PCs, such as multisync monitors that could handle both graphics and text mode. By the time IBM woke up and came looking for license revenue, Compaq had enough collateral to get reasonable terms on a comprehensive patent cross license.

Re:Where's the business rationale to protect the I

[GweeDo]

They already have. It is called the Classic Series for the GBA. They make a lot of money there. They will also have all those games for free to download on the Revolution. So there is good money in it for them to hold that stuff as their own.

Re:Must... protect... innovation...

[Quadraginta]

Well, because the only way you can get rich innovating is if the law forbids every slacker sitting around doing nothing from immediately copying your invention (or work of art) and (since he doesn't have to pay back the enormous loans you took out to support yourself while developing your idea), undercut you by 50% on price and drive you promptly into bankruptcy.

The term of a century for copyright law is chosen more or less just to correspond to the artist's lifetime. Patent law is limited to about 20 years, that being the time it's considered "fair" to let you dominate the market for your invention. After that, the generics come, and you better have moved on to something new.

Patent and copyright law was explicitly written into the Constitution in 1787 probably because the Founders had unpleasant experience with a world in which patent and copyright law was weak. The result was that the only way for an inventor to control his invention enough to make a decent living from it was to keep the details a deep dark secret. That sucks on many fronts: (1) The invention may well die with the inventor, unless he chooses otherwise, has sons to carry on, et cetera. (2) Good ideas that might be indirectly inspired by details of the invention don't occur. There's no cross-fertilization, where one clever invention (e.g. the electric motor) inspires a related invention (e.g. the electric generator) or a supporting structure (e.g. batteries for small electric motors). (3) The practise of the new invention spreads very slowly, since the inventor must personally trust everyone to whom he teaches the invention. He has no ability to teach strangers to use the invention, or even allow strangers to teach other strangers, because he has no legal way to force anyone to stop using his invention if they start to do so unreasonably. Patent law gives an inventor specific and limited rights to control his invention, and that predictability allows him to trust people more easily and spread the new practise faster.

Patent law is basically a bargain struck between inventors and the public. The public agrees to give the inventor a limited and specific set of rights to profit from his invention, and in exchange the inventor agrees to make the details of his invention public immediately. The key aspect of the patent is the fact that the invention must be completely and thoroughly described before a patent is granted. That means everyone can benefit from understanding the precise details of the invention. Indeed, engineers quite often search existing patents for good ideas that can be developed elsewhere, and frequently find them. It's rare that a good idea leads to only a single worthwhile invention.

Re:ROMs?

[Anonymous Coward]

Actually, this is only true if you make the backup copy. It is not legal to download a backed up copy, regardless of whether or not you own the original cartridge. Now, morality-wise, I have no problem with downloading an image of a game I already own, but that wasn't the original question asked.

Who needs an NES clone?

[AvantLegion]

A $10 replacement connector from eBay fixes virtually every dead NES system out there.

The vast, vast, vast majority of non-functioning NES systems have nothing wrong with them except worn-out connectors. The ones you can get on eBay today are much more solid and long-lasting than the ones that were in the system originally.

Re:Where's the business rationale to protect the I

[bhtooefr]

Or, pay $50 for one of those shady "700 in 1" TV games, and note that the cartridge port on the back is a Famicom cartridge port. IIRC, Lik-Sang sells adaptors to run NES games on a Famicom (or a Famiclone in this case).

Re:Hmm...

[Makarakalax]

Obviously, the copyright on the games won't expire for 50 or more years. So no, it isn't legal unless the game publisher specifically says so, since they still have the right to restrict copying of said materials.

Re:mmmm... Ikari Warriors

[JAppi]

This poster is clearly lying. No one on slashdot has a girlfriend.

Lockout chip is unnecessary

[tepples]

I also suspect that the 10NES cartridge authentication system is not additionally a console authentication system: the clone NES consoles shouldn't need to verify that the cartridges are authentic to get them to work.

In fact, the top-loading version of the NES doesn't contain the lockout chip at all; it just leaves the lockout chip data pins unconnected.

The Super NES, on the other hand, did use the lockout chip in both directions in some cases. Games using the SA-1 chip (Super Mario RPG; Kirby Super Star) wouldn't start the coprocessor unless the cart detected that the Super NES's lockout chip was authentic and for the correct region.