5 August 2016

A patent in the air

For a number of years now, gamers have been looking forward to the release of No Man’s Sky, a game in which the player explores an almost never ending world. The date set for the game's market launch has now finally been set for 9 August. But will a patent from a Dutch company throw a spanner in the works?

The generation of extensive worlds is still quite expensive in terms of the computing power required. The so-called “Super Formula” of Belgian plant geneticist Johan Gielis appears to have made a significant breakthrough in the development of the game. Sean Murray, the maker of No Man’s Sky, talks about this enthusiastically in a number of interviews. In the New Yorker, for example:


Johan Gielis himself also realised at the time how revolutionary his formula indeed was. Formulas themselves cannot be patented. Article 52 paragraph 2a of the European Patent Convention excludes "inventions, scientific theories and mathematical methods". The application of a formula can, however, in some cases indeed be patented. European patent EP 1177529 protects the use of the Super Formula for the generation of a "physical form".

De Telegraaf however reported on 20 July that Hello Games, the developer of No Man’s Sky, did not get a license from Gielis’ company Genicap.


It is not clear whether Hello Games was actually aware of the existence of the patent. It is also not clear if the game ultimately used the Super Formula or not. Sean Murray tweeted the following on 23 July: "No Man's Sky doesn't actually use this "superformula" thing or infringe a patent. This is a non-story... everybody chill (シ_ _)シ". It is therefore not clear if No Man’s Sky is violating Gielis’ patent, but it does appear to be reason enough for a possible legal case about the matter.

Up until recently, Hello Games was still under attack with regards to a previous legal case with British telecommunications company Sky about the name given to the game. The case was settled out of court. But now there is a threat of a new dispute. This has caused concern among gamers, who are wondering whether the launching of the game might be further postponed. Maybe Hello Games was not careful enough with their preparatory investigations?

Let's assume that the game does indeed use the Super Formula, and Hello Games still wants to get a license. This would put Genicap in a particularly strong negotiating position. Surely, at this stage it will be very difficult (and delay the game further) to take such a fundamental component out of the game.

Once again we are reminded, when using existing components in a product, how important it is to check, at an early stage in the process already, whether or not these components are protected. If that is the case, a license be secured before the component potentially becomes indispensable. If Hello Games had done this, they may not have found themselves in this difficult situation.