Regarding Icehouse Patents (and Lawsuits)

By Andrew Looney
May 31st 2002

I got an email this week from Ron Hale-Evans, who wrote: "I read your IceTowers patent, and to me it looks an awful lot like a patent on Icehouse pieces themselves." He went on to ask several questions, and since we clearly need to state our policy on this matter, I'm turning my response to him into this essay. But first, some background information...

Ron is a proponent of Piecepack, which is a set of gaming components (like Icehouse) that can be used to play many games. However, Ron is also an advocate of free software who believes game systems should work the same way. The promoters of Piecepack have made a big point of saying their system is in the public domain, and that anyone who wants to make a set can do so freely. Armed with these lofty ideals, they believe everyone else should do the same... Ron wrote an article about Game Systems for TheGamesJournal.org, in which he was quite critical of us for getting a patent instead of making our game system freely manufacturable. Needless to say, as entrepreneurs attempting to build a profitable business on the strength of our inventions, we have a different viewpoint.

Ron asks 3 questions:

"1. Would you sue someone who made and sold an Icehouse set?"
"2. Do you believe you have the right to?"
"3. If so, how similar to an Icehouse set does a set of game components have to be before you will take legal action?"

First of all, it must be understood that I hate lawsuits and would be extremely reluctant to get involved in one. I'm disgusted by those who have a knee-jerk reaction of "we'll sue!" anytime something happens that they object to, and I despise our hyper-litigious society.

That said, we also believe in protecting what's ours, and we would certainly complain if a Big Evil Corporation™ began stealing the market we've worked so hard to create, by selling knock-off Icehouse sets. Like all independent game inventors, we're paranoid about being ripped off by the Big Evil Corporation™, and this paranoia is part of what motivates us to apply for patents.

But there are other scenarios. If a small time entrepreneur wanted to make some fancy wood Icehouse sets to sell at craft shows or conventions, this would not upset us. Actually, we like the idea of homemade sets, and in fact we encourage it, by including the size specifications, methods, and tips for "pieceniking" on our website. If someone starts to make fancy anodized aluminum sets, or some other cool deluxe set, and wants to start selling them to Icehouse fans over the internet, we will be just as excited about it as the rest of the Icehouse community. But yes, we do hope that if they manage to start actually making money on it, that they acknowledge that we deserve a small royalty.

Here is our new official policy:

In either case, we would request that you credit us as the designers (and list our URL) in whatever literature you also publish.

2. "Do you believe you have the right to?"

Yes, absolutely. We've already spent 14 years and quite a lot of our money on the development of the Icehouse set, and we're still just recouping our losses. (It's mostly the sale of our card games, particularly Fluxx but also Chrononauts, which currently sustains our company.) However, like a farmer who plants a seed and carefully nurtures it until harvest time, we believe our long-term commitment to the Icehouse set will eventually pay off. To suggest that we should now be willing to give away those profits to anyone who might wish to manufacture and sell Icehouse pieces is, quite simply, offensive. It is like telling a farmer he should be happy to share his corn with the crows. Patents are like scarecrows. We didn't spend the last decade creating a market for Icehouse pyramids only to have another company with more funding and marketing muscle come in and steal our business. If anyone is going to make money on Icehouse pieces, it should be us. And that's precisely why patents exist, and why we went after them.

Ron however seems to believe that patents, and those who seek to obtain them, are inherently evil. Here again I must disagree with him. Patents are cool. They are like merit badges for inventors. A patent is official recognition from the US Government that your idea is "New, Useful, and Non-Obvious." That's neat. I like getting patents simply for the bragging rights they provide. We don't know who invented playing cards... but in a hundred years or two, when Icehouse games are similarly popular, I want people to know it was Andrew Looney who thought them up. This is another reason I go after patents... it's not just about protecting our profits, it's about my ego, too.

I also disagree with Ron's comparison of game systems with free software. The analogy may be fairly apt when it comes to the designs for games, but the pieces themselves are clearly hardware, not software. We encourage everyone to invent games for icehouse pieces, and we freely publish the rules to our own games on our website. As far as the software analogy goes, our system is entirely open. We'd even be happy to see other companies publish games that can be played using Icehouse pieces. But when it comes to the hardware, we'd prefer to be the official manufacturers.

3. "If so, how similar to an Icehouse set does a set of game components have to be before you will take legal action?"

Again, it would take more than just similarity to drive us to Legal Action. Someone would have to be massively ripping us off before we'd ever consider that, and even then, it would be an absolute last resort, taken only after requesting that they treat our desires with respect. We'd probably start with a letter that says what they're doing is making us sad. (And sad we'd be...)

Nevertheless, any set of game pieces that look and function like Icehouse pieces would certainly attract our attention. If you could use such a set to play some or all of the games in Playing with Pyramids, which purchasers presumably would do, then I think we'd be upset. And if a Big Evil Corporation™ were making heaps of money doing so, and the only way to change things were via a lawsuit, then we'd probably at least consider it.

A set of similar but clearly different gaming pyramids is another matter. I would still urge anyone considering such a production not to bother, though. One thing we've learned quite clearly is that little plastic pyramids are a nightmare to have manufactured. (Like I said, we make most of our money on card games... the margins on those plastic pieces are very thin.) I doubt seriously that another company could try something similar-but-different and be successful. Does the gaming community really need a pyramids format war? Despite our emerging success, we have yet to make any real money on the system, so I really don't think the market can support a second format.

Ron's questions stopped there, but I'll go ahead and answer the one he didn't ask. The Piecepack community, which seems to consider us evil for choosing to obtain patents, is now talking about making their own gaming pyramids, which they're calling "Piecepack Pyramids." From what I can tell, they would look and stack much like Icehouse pieces but would come in either 4 or 6 sizes (I'm not sure if they've made their minds up yet which) and would have Piecepack symbols somehow printed on two faces of each pyramid. Piecepack Pyramids are all supposed to be the same color.

Would such pyramids infringe on our patent? It's debatable. Would we sue the Piecepack people if they produced such pyramids? Definitely not. I may not like their idea, but I would never use a lawsuit to stop them from doing it. That's just not our style.

Ron may continue to regard our attitudes here as being "un-hippie," but while we do in fact consider ourselves hippies, we're also entrepreneurs chasing the American dream, not communists willing to give away our hard-earned assets to those who would profit from them without sharing with us.

One final disclaimer: Here, as in all things, I reserve the right to change my mind.


Copyright © 2002 by Andrew Looney.