It’s in the industry’s best interest for Nintendo to lose its patent battle | Opinion

The news that the head of the US Patent Office has ordered the agency to re-examine a patent awarded to Nintendo at the start of September is both highly unusual – it’s more than a decade since the agency last took such a step – and very welcome.

The patent in question covered the action of an in-game character summoning another “sub-character” to fight on their behalf. As many people pointed out when it was first granted, this patent is ridiculously broad, and it should never have been given the green light in the first place.

The patent describes a very common game mechanism, and in filing for it, Nintendo acted like a common patent troll rather than a respectable company. In granting it, the US Patent Office showed itself to be asleep at the wheel. At least one of those parties is now trying to make amends.

Nintendo is well known to be one of the most litigious companies in the games business. The cuteness of its family-friendly characters and worlds often seem in stark contrast with the unbridled aggression of its legal teams (a contrast, it’s often noted, that the company shares with Disney).

While its heavy-handed legal antics are often met with criticism from fans – especially when they end up targeting things like fan projects, tournament organisers, and online creators – there’s generally a quiet sense of approval within the industry for how Nintendo takes care of business. Its aggressive pursuit of piracy groups, modders, and jailbreakers (and rather more controversially, emulators) is mostly seen as serving the common good of the industry, even if the opprobrium it attracts means few are willing to publicly sing its praises.

Not this time. You’d be hard-pressed to find just about anyone in the industry who didn’t think Nintendo’s “summoning patent” was mad, bad, and dangerous for everyone. While there was certainly some public outcry after the patent was reported, it’s safe to assume that the decision by US Patent Office director John A. Squires to order its re-examination (which, as Games Fray pointed out in its reporting, has not happened since 2012) came after concerns were raised in behind-the-scenes discussions with other major companies in the industry.

It’s good news that it’s being re-examined, and it will be better news if it’s struck down. It doesn’t change the fact that it should never have been filed, nor should it have been awarded. It certainly doesn’t change the broader problem that patent offices around the world are seemingly ill-equipped to deal with the nuances of gameplay-related patents (which arguably shouldn’t exist at all), nor with the fact that Nintendo has lately seen fit to abuse that lack of clarity in the system with a spate of patent filings that directly threaten many other companies in the industry, including many of Nintendo’s closest partners.

Nintendo isn’t new to patent filings, of course (although historically, it has tended to focus more on hardware-related patents), but this latest spree is motivated by the company’s highly contentious legal proceedings against Palworld developer Pocketpair, a civil suit currently winding its tortuous way through Tokyo’s courts.

That lawsuit has been ongoing for over a year (Japan’s courts are not noted for the rapid pace of their proceedings), and hinges on some of Nintendo’s Japanese patents, of course, not on any US filings. It’s all still linked to some extent, though – if the US patents run aground, it will not go unnoticed by Japan’s patent authorities, especially if it’s for the reason of prior art claims.

Palworld, you will no doubt recall, launched with the unofficial tagline of “Pokémon with guns.” This wasn’t Pocketpair’s phrasing, naturally, but if you spent years in a lab trying to formulate the perfect combination of words to give Nintendo’s lawyers an aneurysm, you couldn’t possibly come up with something better. Some kind of legal response always seemed likely – but a patent case backed up by filing horrendously broad gameplay patents is arguably the most damaging way, for the entire industry, that Nintendo could possibly have pursued this claim.

It’s instructive, I think, to contrast what Nintendo is doing with Palworld – and the notable lack of support from the rest of the industry for this approach – with the ongoing litigation between Sony and Tencent over Light of Motiram, which Sony alleges is an infringing clone of the Horizon games.

Sony’s case here is based on a much more traditional and straightforward set of claims – that by cloning many key elements of Horizon, Tencent risks damaging Sony’s IP by confusing buyers, effectively passing off its product as being related to Sony’s brand.

This is quite different from the patent case Nintendo has filed against Pocketpair. Sony isn’t (in this case, at least) asserting ownership of individual gameplay mechanisms; it’s arguing that taken as a whole, Light of Motiram copies a host of elements from Horizon in such a way as to create a cloned product that will cause market confusion.

Sony’s case is, of course, more clear-cut – not least since there’s a whole narrative background in which Tencent apparently approached Sony with a proposal to develop a new game using the Horizon franchise, then seemingly slapped a new name on the work-in-progress when Sony said no (at least, that’s what Sony alleges).

Palworld is far more of a departure from any existing Pokémon title, and Nintendo would struggle to convince anyone that it’s a simple clone of one of its games. Even with the “Pokémon with guns” line being so widely used by members of the public, it would probably be hard to convince a court that this was causing actual market confusion.

This doesn’t mean Nintendo was forced to resort to patent trolling. There was always another option here: do nothing. You don’t have to sue everything that moves, nor everything that looks a little bit like a thing you also make.

Any company would be pretty annoyed by someone releasing a game that so clearly draws upon its prior work while adding major elements (like guns) that it disapproves of in this context. A reasonable company, however, would explore legal options, and upon discovering that there isn’t really a case to be answered in terms of cloning, passing off, or market confusion, would sigh and just drop it.

Nintendo isn’t always a reasonable company, and more to the point, in this case, its legal team isn’t acting reasonably. Nintendo’s aggressive protection of its IP is generally understandable and often even laudable. Of the companies that have remained active since the “retro” days of the industry, Nintendo is one of the most active in republishing and exploiting its old IP, which is a reasonable basis for protecting its rights. The proliferation of piracy devices for the DS consoles also exposed Nintendo to a significant piracy risk from some very well-organised and highly profitable criminals – not BitTorrent jockeys in their bedrooms – which makes it understandable that its legal team is more hard-nosed than most.

This whole episode represents a giant overreach for Nintendo

Once you’ve let slip the dogs of war, though, it’s bloody hard to get the leash back on them – and it feels like Nintendo is more or less being guided by its legal department’s extremely poor judgement in this matter, rather than by a more holistic consideration of what’s good for the company, for its relationships with its partners, or for the industry in which it operates as a whole.

Regardless of the final judgement in its case against Pocketpair, or even of what happens to these dubious patent filings, this whole episode represents a giant overreach for Nintendo. It’s an overreach that may actually do some damage to the company, given how these actions are being understood by key industry partners, alongside the risk of coming to be seen as unreliable or dishonest by patent authorities across several jurisdictions.

It’s fine for Nintendo to value its legal rights – but ironically, given the patent in dispute, this is a company that really needs to learn that it’s not always appropriate to summon a lawyer to fight its battles.