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Yesterday, Gamesfray reported that as of last week, Nintendo had secured US Patent 12,403,397. This patent protects the game mechanic of “causing a sub-character to appear,” or summoning a character, and “controlling a battle between the sub-character and an enemy character.” Essentially, this is a classic Pokémon battle. It could also be seen as another addition to Nintendo’s arsenal in its legal battle against Palworld maker, PocketPair.
Nintendo has also acquired US Patent 12,409,387, which protects mechanics around player characters riding in-game “objects.” This patent fits into Nintendo’s legal battle with PocketPair and Palworld.
No matter who is doing it—whether it’s Nintendo, Warner Bros., or any other entity—it’s never great to see video game companies patenting game mechanics. According to IP and patent lawyer Kirk Sigmon, these latest patents go beyond the general level of criticism that patenting game mechanics causes players. Speaking to PC Gamer, Sigmon bluntly states, “Broadly, I don’t disagree with the many online complaints about these Nintendo patents. They have been an embarrassing failure of the US patent system.”
For Sigmon, it’s not just the content of the patents and what they protect; it’s how little the United States Patent and Trademark Office (USPTO) questioned and scrutinized these patents when they were submitted. He says, “This seems like a situation where the USPTO essentially gave up and just allowed the case, assuming that the claims were narrow or specific enough to be new without evaluating them too closely. I strongly disagree with this result: In my view, these claims were in no way allowable. This allowance should not have happened, full stop.”
An obvious issue with these patents that Sigmon points out is that they don’t just apply to Nintendo’s fight with PocketPair. They can apply to numerous other games and give large companies too much power to threaten whoever they want whenever they see fit. For Sigmon, it represents a warping of the patent system that he still believes in.
“The USPTO dropped the ball big time, and it’s going to externalize a lot of uncertainty (and potentially litigation cost) onto developers and companies that do not deserve it… They were not made to allow a big player to game the system, get an overly broad patent that they should have never received in the first place, and then go around bullying would-be competition with the threat of a legally questionable lawsuit.”
Securing patents that could be used against PocketPair is consistent with Nintendo’s ‘hail mary’ tactics in its lawsuit against PocketPair and Palworld. In July, reports surfaced of Nintendo adjusting existing patents to better align with its arguments against PocketPair.
The most terrifying aspect of these patents, according to Sigmon, is the precedent they set. While there’s a chance that these patents could be rolled back if an Inter Partes Review case is successfully heard, it doesn’t seem worth relying on the USPTO to scrutinize such patents closely.
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