Gamasutra is running an article claiming that
even with the expiry of key NES patents, Famiclones may not be as legal as some may think because of trademarks and copyrights.
But the only things that are copyrighted that I can see inside an NES are the circuit board layout (which is all but irrelevant) and the 10NES code in the CIC (which you can just leave unconnected as the toploading NES does). Trademarks are hardly an issue if you make sure to disclaim any confusion: "Compatible with software for Nintendo Entertainment System consoles. (This product is not sponsored or endorsed by Nintendo.)"
The article probably wasn't written with the help of a lawyer familiar with patents, trademarks, or copyright (if it is, I'd steer clear of them for legal advice). There is repeated reference to IP, yet there is no such thing as intellectual property, only patents, trademarks, and copyright, each separate and independent.
Note the vague statement about "copyright on the NES":
Quote:
This means the copyright registrations for the NES system are valid until about 2090. [...] Nintendo has actually tested the power of one of its copyrights on the NES in the case, Atari Games Corp. v. Nintendo of America.
Pure journalistic fluff:
Quote:
So, it is clear that the answer to the question is not simple. Not all the patents are expired, but some are and a few more will be this time next year. The trademarks and copyrights are still valid and enforceable. Furthermore, if past behavior is any indication, Nintendo will litigate to protect its IP rights. On balance, making an NES-like console in the next century appear to be a legally risky proposition.
Like most articles these days, this one appears to be entirely for the drama and excitement of discussing conflict.
Can a circuit board layout be copyrighted? Circuit boards are designed for function, not for their creative or aestetic qualities. The NES design could be possibly copyrighted for its creative design and the image of the toaster can be trademarked through use and identification with Nintendo. NEX, as it resembles a front loader, may be in some trouble here. However, as Nintendo has shown with Famiclones that contain copyrighted game code, they haven't been aggressive in ridding the shopping malls of America of these devices.
In the Atari case, Nintendo tested its patent and copyrights of its lockout chip. The patent covered how the lockout chip mechanism worked, the copyright the program code the lockout chip ran (which Atari obtained from the patent office underb false pretenses.) The NES clones don't use a lockout chip and the NES doesn't contain any other code. All other code comes from cartridges.
While Nintendo may have some patents for NES accessories and game cartridge hardware, any patents they had on the NES itself have expired. I suppose you could make the argument that by running the game and interfacing with its protected hardware, the clone maker is making an unauthorized use of the patented technology, something Nintendo must grant.
In the final analysis, is it worth it to Nintendo to litigate against obselete technology?
"the clone maker is making an unauthorized use of the patented technology"
??
That statement, AFAIK, has no legal value. If they are simply reproducing the original system, or at least the parts that are no longer under patent protection, to allow the buyer to use the NES carts, which may, in many ways, still be under patent protection, the buyer is the one using the "patented technology."
However, the issue here is that the buyer already owns the NES carts, and under the doctrine of first sale can use them however s/he likes. The patent holder cannot control how you use the products governed by their patents. That kind of control is, so far, reserved for license agreements governing use of copyrighted materials.
If you have a patent and make a product utilizing and protected by that patent, once I buy your product, the only think I can't do with it, essentially, is copy it and sell the copies, but only because that violates your patent. You cannot in any way control how I use that product, patented or no.
So in summary, if the relevant or important parts of the NES, at least so far as reproducing a functional unit is concerned, are no longer under patent protection, then making a functional unit, even if it does use items still under patent protection like game paks or peripherals, the manufacturer is, AFAIK, within their legal rights, as are the consumers who use the peripherals and game paks with the cloned console.
If someone knows the relevant law in greater detail and sees some fundamental flaws in this logic, please do step in and set me straight.
I think your patent argument is sound. Consider, back in the day, Nintendo never won suits against the Game Genie or other unlicensed game developers (except for Atari, above.) Solid legal precedent prevents Nintendo from going over the same old ground. Even today, hundreds of unlicensed peripherals are made for the Gamecube and Gameboy Advance, yet Nintendo doesn't go after them.
But consider the trademark claim. Nintendo has an enforceable trademark on the name of its console, the "Nintendo Entertainment System." Messiah officially named its console "Generation NEX." While that is not incredibly likely to cause confusion, NES does. In video gaming circles, NES is widely recognized as standing for the Nintendo Entertainment System. Even Nintendo uses it. There is potential for confusion and dilution, because less-well informed consumers could associate such a product as being an official Nintendo product. When it doesn't work to their expectations, they will complain to Nintendo. I am sure when the Famiclones were being sold in the malls of America during Christmastime, once they broke Nintendo had to tell angry consumers that they bought an infringing product they were not responsible for. Also, Nintendo has an interest in keeping the ability to make NES games work under its control.
Also, the aestetic and creative apsects of a device's design can be copyrighted unless the device is so incredibly bland as to make it a generic product. This includes the design of the NES. The NEX is designed to mimic the NES's design, down to the two-tone color scheme.
as long as it dose not include any pirated games I don’t think Nintendo really cares
the NES hardware is no longer profitable for them so they are not likely to bother with the ones that do resemble or have a similar name to the NES
as for the NES games they still sell them in various forums and intend to continue to do so for many years to come so they are protective of them
I dont know about the rest of you but famiclones that do include pirated games and do piss off nintendo are still being sold in my local shops for around $30 but the stores and the people buying them usually dont know what they are and sence they have famicom connectors and this is the US most could not firgure out how to make it load nes carts