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Onechanbara, it is safe to say, is not a fondly remembered game. Released on Xbox 360 in early 2009 (late 2006 in Japan) by D3 Publisher Inc., Onechanbara was an action game in the Dynasty Warriors mold, wherein bikini-clad women cut down hordes of zombies with katana swords. The reviews were tepid, but interestingly, most made the same unusual comment: the interactive loading screen, a 2d side-scrolling version of Onechanbara, was more fun than the full-scale 3d game that was being loaded. So why do so many more notable games simply waste the player’s time while the data loads?

The answer: Namco holds a dubious patent on “auxiliary games” that play while the main game loads. Namco’s patent, US Patent 5,718,632, was filed in 1995 and is thus set to expire in 2015.

Back in 1995, loading screens may have been familiar to computer gamers, but they were a new annoyance for console gamers raised on Nintendo and Sega cartridges. Most new CD-based games displayed a static “now loading” screen. Some games disguised the loading, such as Castlevania: Symphony of the Night’s transitional rooms between sections of Dracula’s castle, or Resident Evil’s distinctive door-opening sequences. Namco’s Ridge Racer, on the other hand, quickly loaded a very small, unrelated game (‘80s classic Galaxian) that could tide the player over while the Playstation loaded the much larger Ridge Racer data. It seemed like a great feature for future disc-based games, but Namco took the opportunity to patent this process. Since then, Namco-published games have often featured fun mini-games during long loading periods. Other studios, however, have not licensed the process from Namco. As such, games often simply display advice on static screens, or feature ways to hide the loading (The Legend of Zelda: Wind Waker’s vast ocean between playable areas, for instance).

Patents, to simplify a complicated subject, exist to incentivize innovation and progress. The general requirements for patentability are that the subject matter be patentable (you can’t patent a novel, for instance), and that the invention is useful, novel and non-obvious. Certainly an auxiliary game is useful for passing the time while the main game loads. However, the patent would seem to fail on the later two points, since interactive loading screens had already been in use prior to Namco’s patent. One notable example was 1987’s Invade-a-Load program for the Commodore 64, which allowed users to play a Space Invaders clone while the main game loaded. Nevertheless, the US Patent and Trademark Office granted Namco’s patent, giving Namco a 20-year period of exclusivity. The result has been a whole lot of nothing during most games’ loading screens, or occasionally loading a little bit of the game’s main code to practice with (as seen in FIFA or Bayonetta), thus circumventing the technicality of a separate “auxiliary game.”

The USPTO has had a controversial history when it comes to granting software patents. An example in the field of video games was Sega’s 2001 patent on the game mechanics of Crazy Taxi (later used to sue Fox Interactive over a similar Simpsons-themed game). Such a patent effectively excludes anyone except Sega from making a game in the same genre, which seems to run pretty far afield from the inventions envisioned in Article 1 Section 8 of the US Constitution (which contains the clause granting Congress the power to issue patents). Moreover, such patents call into question whether society is better off with Namco and Sega having the right to exclude others from making loading screen games or Crazy Taxi knockoffs. Did the possibility of a patent properly incentivize Namco to experiment with loading screens in the first place? Doubtful, since loading screen games already existed. Did granting Namco’s patent stimulate innovation over the past 20 years? The answer likely depends on who you ask, but it doesn’t appear that Namco has done anything particularly noteworthy with it.

It’s probably a moot question anyway, since the patent’s period of exclusivity is finally running out on November 27th, 2015. So when can we expect to see games with loading screen mini-games again? Theoretically: November 28th. However, the patent expiration date is only when publishers can start integrating the idea; programming an auxiliary game during the patent’s exclusive period, even with the intent to publish the game after the exclusive period, would violate the patent. So it depends on how swiftly a developer and integrate a loading screen game into a main game.

Finally, what about Onechanbara? Why was D3 Publisher Inc. able to release a game that contained what would appear to be an auxiliary game? It’s impossible to say for sure, but if one assumes Namco knew their patent wasn’t 100% secure, it’s easy to see why they wouldn’t want to fight over a relatively small title like Onechanbara. It was simply not worth risking a lawsuit that could invalidate a valuable but vulnerable patent over fees from a modest niche title. Plus, it should be noted, D3 Publisher Inc. was acquired by Namco shortly after Onechanbara’s release.