Earlier this month, Nintendo received two patents in the U.S. that raised red flags across the gaming community.
Patent No. 12,409,387 covers riding and flying systems similar to mechanics involved in Nintendo’s lawsuit against Palworld. The one that troubled people the most was Patent No. 12,403,397. It focuses on the ability to summon “sub-characters” to battle enemies, based off of Pokémon’s Scarlet and Violet’s Let’s Go! mechanic. Now it’s looking like these patents aren’t even enforceable? What?
A Failure of the U.S. Patent System
In an interview with PC Gamer, videogame patent lawyer Kirk Sigmon was baffled on how these patents were approved. Patent 12,409,387 initially faced pushback due to similarities to existing patents filed by Tencent and Xbox. Instead of rejecting Nintendo’s claims, the company was allowed to amend them based on interviews with the USPTO. The examiner determined the claims would be allowed “for substantially the same reasons as parent application(s).”
Patent 12,403,397 had an even easier time getting approved. USPTO only reviewed a small handful of documents: 16 U.S. patents, 7 Japanese patents, and a Pokémon.com article. There was little scrutiny for a broad claim regarding gameplay mechanics. Most of the claims in its parent case were immediately allowed without a single rejection. Even more bizarre is the reasoning the USPTO gave was a quote of text from the claims themselves.
Sigmon theorizes that the USPTO assumed that the claims were specific or narrow enough to be new. In other words, they gave up on proving if Nintendo’s case had any merit. Sigmon called the situation “an embarrassing failure of the U.S. patent system.” These patents won’t be undone any time soon. Under Acting Director Coke Morgan Stewart, the USPTO has limited post-grant challenges like Inter Partes Review. This makes it harder to strike down bad patents outside of court.
What Was the Point of Filing for New Patents?
Interestingly enough, former Chief Legal Officer for The Pokémon Company Don McGowan believes these patents will be ignored. He told Eurogamer that if Nintendo ever threatened to sue a developer, it won’t hold up in court. There are countless examples of games using similar mechanics for decades. It shouldn’t take much to kill Nintendo’s claims that it’s unique to Pokémon.
So why would Nintendo file for these types of patents? Because it’s a scare tactic with the patents themselves being a weapon. Many developers and companies would remove certain mechanics in their games to avoid spending millions in litigation.
This affects indie developers more than anyone else. Not many people are willing to gamble on the hope that a court will strike Nintendo down. Even if Nintendo never files a lawsuit, the uncertainty is enough to intimidate anyone who wants to make a game in the pocket monster genre.
Nintendo Risks Becoming the Villain
For now, everyone is waiting to see how Nintendo will weaponize these patents. Depending on what happens with their lawsuit against PocketPair, the company has the power to file a patent infringement lawsuit in the U.S. I wouldn’t be surprised if developers decide to avoid the pocket monster or monster-taming genres.
If Nintendo thinks everyone will forget about these new patents, they’re mistaken. More people are growing to hate Nintendo because of stunts like this. They see the company has nothing more than a bully. One who will file frivolous lawsuits or patents to block the competition. It’s only a matter of time until the company completely alienates itself from the gaming community as people become less tolerant of their actions.
