This week, we’re going to look at one of the most famous, and creepiest, game-related patents ever granted: the patent for the Ouija board. Now, buckle up, my beasties, because we’re about to do a deep dive into divination patents.
Most people think of patents for things like new surgical tools or smartphone features. But a patent can be granted for any new and useful process, machine, manufacture, or composition of matter, and yes, that includes a paranormal-themed game!
Let’s look at the most famous horror board game of the century. You know it. You may be scared of it. If Regan McNeal had left hers alone, Captain Howdy might have looked elsewhere. Movies have been spawned from it. It’s been in countless TV shows. It’s been around for long, long years under several names and has possibly stolen many a man’s soul and faith.
The Ghost in the Patent Machine
While talking boards have been around for centuries, perhaps millennia, the earliest patent for one in the US is from 1891, by inventor Elijah Bond, and it expired well over 100 years ago. U.S. Patent No. 446,054 was not about spiritualism, however. It was a utility patent protecting the unique operation and construction of the device as a toy or game.
The patent did not claim that the board actually contacted spirits. It claimed protection for:
- The Board: The “game apparatus,” which is the board marked with letters, numbers, and certain signs and figures.
- The Planchette: The small, three-legged indicator designed to move across the board, serving as an index.
- The Combination: The board in combination with the planchette.
- The Mechanics of the Combination: The planchette being operated in conjunction with the board by hand “in the manner and for the purpose set forth.”
The patent’s description is purely mechanical, stating: “The table is placed upon the board, and the hand of the operator is lightly laid or held on the table, when in a few moments the table will move and point to certain letters on the board, spelling and forming sentences answering questions put by the operator or any other person that may be present at the time.” It’s form + function. Without the function parts, the claims would be suitable for design patent protection, not utility patent protection.
One of the requirements for a patent to be granted is that it is possible for the invention as described in the application to work.
Legend has it that the chief patent officer was skeptical and demanded a demonstration. Bond and his medium, Helen Peters Nosworthy, reportedly had the board spell out the officer’s name, sealing the patent’s fate. While that tale is a fantastic piece of marketing, the legal fact is that under US patent law, you can’t prove the paranormal, and the patent was granted because the board’s mechanism was novel and nonobvious as a game device. If the application made reference to the intervention of spirits, it wouldn’t have been granted, because that’s considered an “abstract concept,” and can’t be proven as a mechanism of operation. The Ouija board patent application just claimed it worked yet didn’t say HOW it worked.
These days the application would need to be much more detailed to avoid being rejected. As long as it describes how players touch it and that it moves around the board once they touch it, that would likely be fine. There could be a utility patent for the method of the game and a design patent for how it looks.
The Life and Death of a Patent
The story of the Ouija board is a perfect lesson in the limited lifespan of a patent.
- The Patent’s Power: For the 17 years the patent was active, it granted the owners the right to exclude others from making, using, or selling that specific mechanical design. This allowed the Kennard Novelty Company, owned by Bond and business partner Charles Kennard, to dominate the market and make millions.
- The Patent’s Perilous Path: By 1892, an employee, William Fuld, had taken over the company and renamed it “The Ouija Novelty Company.” Fuld licensed the use of the term Ouija to a new business owned by himself and his brother in 1899, and they took over the manufacture and sale of the Ouija boards. Fuld eventually split with his brother and kept the name Ouija and started his own business with the boards in 1901. His brother defied an injunction and marketed a nearly identical board under the name “Oriole,” and the two feuded about that in court until 1919.
- The Patent’s Death: A utility patent only lasts for a non-renewable term (it was 17 years back then; it’s generally 20 years from filing now). Once the patent expired in 1908, the mechanism of the talking board, a flat board with letters and a planchette, was thrown into the public domain. Anyone could then make and sell that basic device.
Cleverly, by 1919, Fuld made cheap knockoffs of his own product to combat competition from others selling talking boards. He made and marketed them under several names, including “Mystifying Oracle.” Fuld’s family continued to run his company and make and sell Ouija boards until they sold it to Parker Brothers in 1966.
This is why, today, you see a dozen different “talking boards” on the market, but only the specific, trademarked name OUIJA is protected to this day. We’ll talk about that trademark in a future episode! The copyrights for the instructions and the drawings of the players in the corners of the board were registered in 1919 and 1920, respectively, and are in the public domain now.
The Ouija patent hasn’t been the only talking board patent. Another version that received a patent is US1400791A from 1920, invented by Harry Bigelow, that has the letters and words in a straight line, with the planchette on a track and gliding on bearings. Other variations that received patents were an electronic version from 1938 (US2220455A), one that records what the board “says” from 1985 (US4753439A), and several variations on layout, looks, etc., including an application for one for cats where the possible answers are “purr,” “stalk,” “rest,” etc. that is currently pending (US20230182002A1).
Plenty of versions of the game have never been the subject of patent applications. My personal favorite modern version of the game is the glow-in-the-dark version. Why couldn’t that be patented? It’s not considered non-obvious to apply glow-in-the-dark features to games and toys.
Protecting the Paranormal
There are a variety of other Halloween and horror-related board games that have received either utility patents for either how they work or design patents for how they look, or both. While utility patents cover the method of how the board games work, the rules of the games can’t be patented. Rather, the rules are covered by copyright law, so you’d want to register them with the US Copyright Office. The tokens, game characters, game boards, packaging, etc. can be covered by a utility patent if it’s for how they function; a design patent or copyright for the way they look; and sometimes by trademark law if they become iconic enough to represent a brand. If you’re creating a board game, or any other kind of game, it’s good to consult with an intellectual property attorney about how best to protect your game.
Paranormal Patent Points to remember from this episode are:
- Games can be protected through utility patent registration for what they consist of, how they work, and how they are played, though not the specific rules themselves, and through design patents for how they look. The actual rules are covered under copyright law. The way game pieces and packaging look may also be protectable under copyright law. The name of the game is possibly protectable under trademark law.
- The application for a utility patent has to show that the invention is capable of working as described. That’s why you wouldn’t want to include any reference to the supernatural taking part in how it works. Keep the spirits out of the application!
- Utility patents last for 20 years, and that’s only if you pay the maintenance fees three times during that 20-year period. That may be long enough for you to make a killing from the game and build brand recognition sufficient to protect the name for much longer through trademark rights. After that 20 years, you can only resurrect the patent from the dead by making a “new and improved” version that has new features that are considered patent-worthy.
The moral of this terrifying tale is: a patent is the ultimate protection for your invention, but that protection has an expiration date. Don’t wait until the clock runs out to figure out your next steps, and make sure your application references only the practical, not the paranormal!
Don’t let your creative work or business become a horror story. Intellectual property is one of the most terrifyingly useful tools you have. If you’re a creator or other entrepreneur ready to build a frighteningly powerful brand and business, you need to know how to use it. You don’t have to face the darkness alone, though.
I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I’m an attorney in Champaign-Urbana, Illinois, but I serve intellectual property clients nationwide.
If you’d like to consult with me, you can book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other frighteningly good posts and pages on this website for more information on intellectual property and business law issues. I’m also on most major podcast platforms as “Know Your Rights: Your Intellectual Property and Business Law Playbook” and on most social media as @kingpatentlaw.
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