An embarrassing failure of the US patent system: Nintendo's latest patents
pcgamer.com113 points by rsecora 18 hours ago
113 points by rsecora 18 hours ago
It’s strange that you can patent gameplay mechanics. After all, gameplay mechanics are what define a genre.
It’s like in literature if someone could patent the idea of a detective investigating a murder.
How could the "pokemon-like" genre even exist if you couldn’t create a game that uses “summoning and battling characters”?
Even worse, that description alone applies to multiple genres... JRPGs, or even fighting games with multiple characters (something like Marvel vs. Capcom) could fit that description.
I can understand intellectual property rights for very specific technical implementations (for example, the raycasting technique used in Wolfenstein 3D) but you shouldn’t be able to patent the concept of the first person shooter itself. That feels more like restricting freedom of expression.
The actual patent goes into specifics about the covered mechanic they are patenting and it focuses much more on the pokeball/swapping mechanics.
That being said, if they ever tried to hit anyone with the entirety of that, other than in a case of 1:1 replication of Pokemon, it would be a spurious weapon at best. There's too much prior art + alternative implementations in existence to argue for a unique and inventive mechanic.
It would be a powerful enough weapon if the target of the patent infringement case did not have crazy deep pockets. The costs of defending a winning case can be more than small game developer could hope to afford.
You got it. Copyright is about defending monopolization, not just about creative rights and ensuring attribution.
Copyright is an artificial system propping up huge sections of the economy/whole industries. It's internal protectionism at best and hindering progress at worse. Nothing "free market" about it.
A 1:1 replication of the original Pokemon (1995) would be safe from all patent claims as it is obvious prior art and patents filed during that time would be expired. Copyright would be another story though.
It looks like here, they picked minor game mechanics introduced in a later games that Palworld also used (possibly as a coincidence) and then applied for patents. Some of them passed.
If they did come up with it and spent significant R&D on it only to be copied by another, they probably should have applied for the patent before they released it?
I don't pay much attention to Nintendo news these days, aside from the occasional exciting game I see (my wife is crazy about Fire Emblem, so today's a good day!), but I was under the impression this was kinda specifically aimed at making life hard for Palworld, a game which is (as far as I know - I've not tried it) nearly identical to Pokemon, but with some more mature themes and more a more mature technical environment.
As far as gameplay goes, palworld is nothing like Pokemon. Sure, you capture monsters in an open field, but its combat is not turn based and it has a large base building emphasis, for instance.
Now, the monster design in pal world is (I think intentionally) very close to Pokemon’s, while also giving them guns, which I suspect is what triggered Nintendo’s action. You can find plenty of Pokemon likes that match its gameplay much closer (cassette beast, tented) that haven’t caused Nintendo’s ire.
I’m honestly surprised Nintendo didn’t go after the “looks” of the pals.
Like you said besides the “balls” or “spheres” used for capture it’s a completely different game.
Sure it’s a “similar” genre, but they’re also targeting a different audience altogether.
O well guess the lawyers can duke it out in the courts.
Hmm, maybe, but somehow Marvin Gaye's estate still pulled it off. Yes it was a copyright case, not a patent case, but Robin Thicke and Pharell Williams had a well-funded defense. Seems like Nintendo could easily bully an indie game out of existence if they wanted to.
You can't, with board games. I'm not sure why you can with video games. (maybe it's one of those things where you "can't" but actually you can, if you have enough money to keep anyone from successfully challenging it because they can't afford to)
You very much can with board and card games. Monopoly was patented and so was Magic: the Gathering.
My question is whether this patent only covers specific game mechanics introduced in the most recent Pokemon game or whether it's broad enough to monopolize the entire genre. Because if a clone of the original Pokemon from 30 years ago (has it really been that long? I feel old) is infringing, then the patent is clearly invalid due to Nintendo's own prior art.
IANAL, but I think you're misunderstanding their point. MtG did not patent the genre/game type. There are countless other cards games that are essentially MtG, just not called that. Same with monopoly and any other established board game.
It's mostly trademarks with physical games, not patents.
But video games are ultimately software, and that's easy to patent...
US Patent #5,662,332 - Trading card game method of play, inventor Richard Garfield, assigned to Wizards of the Coast https://patents.google.com/patent/US5662332A/en
Obviously there have been lots of other TCGs, but up until that patent expired in 2014, they had to either be sufficiently different from MtG to avoid the patent, or pay royalties to WOTC.
There were also cases that just invalidated it in place. It was a dead patent. You still can't call turning cards to indicate use "tapping" though.
edit: to be clear, anyone can copy every single element of any board game, as long as they don't infringe on the game's copyrights or trademarks i.e. the art and the text, including the names of things. This is absolutely true in the US, but not necessarily true in other countries, and I'm pretty sure false in Germany. Also, there is a European alliance of board game designers who will blacklist retailers that sell your copied game, and the sites that promote it.
Monopoly harassed the game "Anti-Monopoly" forever over this, but eventually when the law became clear, realized they would lose, so settled by paying the designer and giving him a perpetual license to any IP involved in the mechanics of Monopoly so there wouldn't actually be a court decision recorded that officially invalidated their patents (I'm not sure if it was still Parker Brothers by the conclusion.) They could theoretically go after people still, and probably have sent letters (everybody who was going to get rich off the next big board game in the 60s and 70s made a Monopoly clone.) But after the Anti-Monopoly guy published about the experience, everybody knows that any threats are toothless.
There are three types of patents in the United States design utility and plant. This is probably the cause of the confusion.
> maybe it's one of those things where you "can't" but actually you can
Like how you "can't" patent stuff with prior art but then, somehow, big companies seem to be granted patents for things with plenty of prior art all the time?
Some of it is that "getting a patent" isn't always a high bar, and the real bar is "successfully using a patent in a lawsuit". Patent examiners don't have the time and resources to thoroughly vet every application, so there are a lot of patents granted that are pretty much worthless.
In this specific case I don't know. I would have to ask.
> Some of it is that "getting a patent" isn't always a high bar
Which is a big fucking problem, to be honest. I would not want to enter a lawsuit with Nintendo to try to convince a judge that the patent I'm clearly violating is invalid.
If I was making a game with capture/summon mechanics and got a call from Nintendo, I would probably take capture/summon mechanics out of my game if their lawyers were threatening enough. That's the value in unenforceable patents.
Yup. The patent system has been gutted and rigged in favor of whoever has the most money. Pretty much our entire legal system (and government for that matter) simply comes down to having more money than the other guy.
I mean yea, you're not exactly wrong, but the cost to fully investigate every application would be incredibly high. Maybe the answer is to make patents cost $20k (fee) + $20k (your patent lawyer's fee) instead of $1k (fee) + $20k (your patent lawyer's fee). But that's gonna be a lot of extra cost to file.
> If I was making a game with capture/summon mechanics and got a call from Nintendo, I would probably take capture/summon mechanics out of my game if their lawyers were threatening enough. That's the value in unenforceable patents.
It really depends? If you could hire a good patent lawyer for say $5k-$10k to dig up a reasonably correct answer for you, and that answer was "lol this patent is a joke, Nintendo will get quickly smacked out of court and all your attorney fees will get paid for by Nintendo", then maybe that would be sufficient if the cost to you to rework the mechanic would be order(s) of magnitude higher than $5k.
You're definitely right in that before you actually call their bluff and enter litigation, you'd want to be damn sure what you're getting in to.
It doesn't seem like such a bad idea for a patent grant to be a long and expensive process... Why should Nintendo getting a 20 year state-mandated monopoly on an idea be treated lightly? Why is it a goal to make that process go quickly and cheaply?
Seems reasonable to me, yea
It's probably a nonstarter for the current year, given that you'd need to pay for substantially more patent examiners, and better trained patent examiners (even if it does ultimately come a lot from increased fees). Or maybe fewer patent examiners but much more highly trained ones? I'm not sure how that would pan out.
But it would be very cool if the gap between "granted patent" and "proven useful patent" was closed substantially.
Being granted a patent does not make it enforceable. Prior art is a defense against patent litigation.
People without infinitely deep wallets must assume that all granted patents are enforceable when threatened by Nintendo's legal team.
> It’s strange that you can patent gameplay mechanics. After all, gameplay mechanics are what define a genre.
I had thought there was case law along the lines of games have no utility and thus can't have utility patents. Although, perhaps that case was too old, and the rules have changed.
Assuming that games are subject to utility patents, I don't see why you couldn't hold a patent on a genre defining mechanic... But genere defining mechanics for a Pokemon game probably were in the first games from 1996, and afaik the patent backlog isn't that long that they'd be getting a patent today from an application from back then.
They don't want a "pokemon-like" genre to exist at all.
Who is "they"? Nintendo doesn't want it, sure. But why should we let Nintendo decide whether or not they want competitors? Why should the patent office not want a pokemon-like genre to exist?
It's not surprising that Nintendo wants to patent "summon creatures to fight for you" as a game mechanic, the surprising part is that the patent was granted.
how would a summon monster spell compare ? strict interpretation seems to include this prior, and i thought thats not supposed to happen.
when a dungeons and dragon magic user, uses summon monster, they may engage with these same described mechanics of summon and battle. [orb of monster summoning would be way out ]
I wonder if we need something like Anti-SLAPP[1] laws but for patents. If someone sues for infringing on an obviously BS patent there should be a way for the defendant to quickly resolve the case and recover any costs they incurred from the plaintiff. I'm not a lawyer or anything though so idk how or even if this would work.
[1]https://en.wikipedia.org/wiki/Strategic_lawsuit_against_publ...
I'm sorry but the default USPTO position should be to deny process/algorithm/software patents without true innovation. In this case, their own game/show was first released in 1996 in which the patent itself would be invalid from that position, even if they had completely invented the mechanics/idea with no other prior art, their own art is well longer than the term a Patent can/should protect.
It makes me wonder, what's stopping someone from flooding the patent office with thousands of AI generated process/algorithm/software patents, and declaring them free to use for anybody? That's one way I could think of to protect games from being stifled by future patents.
It costs a non-trivial amount of money to file a patent in the USA
And even more to enforce it if granted. You can have all the patents in the world but with without being able to file against infringing parties they’re just documents.
If what is behind the patent is granted free to use, what’s to enforce? How would I infringe on “free to use for everybody “? I believe OP’s idea is to file the patents defensively to block others from filing stupid patents as in TFA.
Can someone clarify the patent? Most discourse I've seen outside this website regarding this focuses on parts only listed in non-limited examples (like ball throwing). I don't think that's relevant at all here (except claim 10).
The main text from what I understand is the claims in sections 37 to 41. Claim 1 is what I'm understanding the be the main claim, which can be summarized as summons that can either do manual combat or automatically battle after following a player around/being directed.
The other claims are to be taken individually, correct? If not, claim 10 (requiring attack of sub character and option for capture) would disqualify most non-capture games and would likely make this a non-issue, but if just the first claim needs to stand then this would be really broad (and from what I understand, prior art in that space would be easy to point to).
Sounds like some folks at the USPTO are looking forward to well-paid jobs at Nintendo.
From the abstract, it sure sounds like any electronic checkers or chess game would fall under this patent. If so, I'm sure there is plenty of prior art to invalidate their claim.
Patents themselves are anti-innovator and the entire system should be abolished. The work is what matters, not the idea.
If I come up with a much better way of doing something that is relatively easy to reimplement, there's no great incentive to come up with those ideas then.
I'm not suggesting that the current patent system works well, but you are in danger of throwing the baby out with the bathwater.
The incentive is in delivering first. When the free market saturates and profits are razor thin due to extreme competition, first movers always get the rewards of innovation
Counter: Netscape vs Internet Explorer. Netscape had a year lead, but it's hard to compete when Microsoft decided to bundle IE for 'free'.
If profit margins are razor thin, the Apples and Amazons and Microsofts of the world can happily copy an idea and hold their breath far longer than a smaller competitor can.
For as long as it takes for a bigger fish to implement, which I’m sure would be hastened without any need to consider legality of doing so.
The incentives are very poor in art, yet artists still create. I don't need people making video games for the incentives, I want the artists.
Can’t we just let America drown in its marooning stupidity?
I don't understand how you can patent a concept that is already decades old without patent protection.
There are a lot of people spreading FUD about these patents, but if you read the actual patent, it’s not like Nintendo now has a patent on all summoning of creatures in video games. The patent is for “you control a character, you throw Pokéball, Pokémon comes out and you control it, and if it comes near another Pokémon it starts a battle”. This is clearly aimed directly at Palworld.
Are most software patents stupid and overly broad? Yes. Should this one have been granted? No. Is this going to stifle the industry? Highly unlikely.
I found the patent extremely difficult to read, but I didn't see anything that describes something so specific as throwing a Pokéball, and in fact, it seemed to me that the patent specifically covers cases where the Pokémon comes out and you don't control it.
You're correct that the patent (in Claim 1) does not specifically refer to throwing a Pokeball (just to "causing the sub character to appear" based on an input), but it seems to me to still be directly linked to this dynamic.
The article itself is quite low-quality (as usual with articles where the title and subheadline are quotes) and I'd go as far as assume it's probably a PR piece placed by another player in the space.