Support NeoGAF

[Sensei]

Last week, however, Nintendo received a more troubling weapon in its legal arsenal: US patent 12,403,397, a patent on summoning and battling characters that the United States Patent and Trademark Office granted with alarmingly little resistance.

According to videogame patent lawyer Kirk Sigmon, the USPTO granting Nintendo these latest patents isn't just a moment of questionable legal theory. It's an indictment of American patent law.

"Broadly, I don't disagree with the many online complaints about these Nintendo patents," said Sigmon, whose opinions do not represent those of his firm and clients. "They have been an embarrassing failure of the US patent system."

Sigmon, who we spoke with last year about the claims and potential consequences of Nintendo's Palworld lawsuit, said both this week's '387 patent and last week's '397 represent procedural irregularities in the decisionmaking of US patent officials. And thanks to those irregularities, Nintendo has yet more tools to bully its competitors.

The '387 patent granted this week, Sigmon told PC Gamer, "got a bit of push-back, but barely." After its initial application was deemed invalid due to similarities to existing Tencent and Xbox-related patents, Nintendo amended its claims based on interviews with the USPTO, which then determined that the claims were allowable "for substantially the same reasons as parent application(s)."

Most of the claims made in the '387 patent's single parent case, US Pat. No. 12,246,255, were immediately allowed by the USPTO, which Sigmon said is "a very unusual result: most claims are rejected at least once." When the claims were ultimately allowed, the only reasoning the USPTO offered was a block quote of text from the claims themselves.
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," Sigmon said. "I strongly disagree with this result: In my view, these claims were in no way allowable."
To Sigmon, an IP attorney with extensive experience in prosecuting and teaching patent law, the '387 patent and its parent case rely on concepts and decisions that would have been obvious to a "Person of Ordinary Skill in the Art"—a legal construct that holds if a patent's claims would reasonably occur to a practitioner in the relevant field based on prior art, those claims aren't patentable.

The '397 patent granted last week is even more striking. It's a patent on summoning and battling with "sub-characters," using specific language suggesting it's based on the Let's Go! mechanics in the Pokémon Scarlet and Violet games. Despite its relevance to a conceit in countless games—calling characters to battle enemies for you—it was allowed without any pushback whatsoever from the USPTO, which Sigmon said is essentially unheard of.

"Like the above case, the reasons for allowance don't give us even a hint of why it was allowed: the Examiner just paraphrases the claims (after block quoting them) without explaining why the claims are allowed over the prior art," Sigmon said. "This is extremely unusual and raises a large number of red flags."

According to Sigmon, USPTO records show that the allowance of the '397 patent was based on a review of a relatively miniscule number of documents: 16 US patents, seven Japanese patents, and—apparently—one article from
Pokemon.com.

have no earthly idea how the Examiner could, in good faith, allow this application so quickly," Sigmon said.

Admittedly, the '397 case was originally filed as a Japanese patent application, which would allow the Examiner to use the existing progress in the Japanese case as a starting point for their review. But, Sigmon said, "even that doesn't excuse this quick allowance."


"This allowance should not have happened, full stop," he said.

On paper, the patent might not seem like a threat to Nintendo's competitors: The claims as constructed in the '397 outline a very specific sequence of events and inputs, and patent claims must be met word-for-word to be infringed.

"Pragmatically speaking, though, it's not impossible to be sued for patent infringement even when a claim infringement argument is weak, and bad patents like this cast a massive shadow on the industry," Sigmon said.

For a company at Nintendo's scale, the claims of the '397 patent don't need to make for a strong argument that would hold up in court. The threat of a lawsuit can stifle competition well enough on its own when it would cost millions of dollars to defend against.

"In my opinion, none of the three patents I've discussed here should have been allowed. It's shocking and offensive that they were," Sigmon said. "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."

Honestly, I'm speechless and a bit disgusted. This could set a dangerous precedent for other companies trying to patent well-known systems.

Original article

Patent

 

[Skifi28]

I'm currently in the process of submitting a patent for controlling a character in a videogame using an input device such as a controller or mouse.

 

[mdkirby]

Feels like the patent office should be sued and/or its decision makers be investigated for corruption.

 

[justiceiro]

Nintendo funds a lot of lobbing, so I'm not surprised. Nonetheless, is revolting. I really hope other game companies fight back, because it's literally their bottom line that is at stake here.

 

[KungFucius]

Feels like the patent office should be sued and/or its decision makers be investigated for corruption.

Incompetence is not corruption. This really should have been flagged as unpatentable by Nintendo's internal IP team. FFS they are patenting prior art that has existed in products in their industry for decades.

 

[The_Mike]

So. We're never gonna see another warlock class in any rpg now.

 

[Ozzie666]

Without knowing the finer details, can something as dumb as general as this be reversed?

Or do Nintendo sit back and either license out the patent to anyone who wants it, do nothing and let things continue as normal. Or attack every game one by one that infringes upon this.

I thought Midway losing NBA JAM license was bad, this is either corrupt or just no clue about gaming.

 

[CuteFaceJay]

Is this a "I do not summon Blue eyes white dragon because the pokemon company would sue me if I do" situation?

 

[Holammer]

Without knowing the finer details, can something as dumb as general as this be reversed?

Or do Nintendo sit back and either license out the patent to anyone who wants it, do nothing and let things continue as normal. Or attack every game one by one that infringes upon this.

I thought Midway losing NBA JAM license was bad, this is either corrupt or just no clue about gaming.

If the patent is bad, it can be challenged and nullified in court.
But smaller developers and publishers won't dare risk losing such a challenge.

 

[Bitmap Frogs]

Jesus fuck Nintendo's corporate bullshit is becoming worse with every passing year.

 

[PlayStaytion]

Taste matter to me so much and I don't care about patents that basically controls how games do taste to consumers.

 

[Black_Stride]

Isnt there like a whole RPG class known for summoning "characters" who do the battling for them?
Hell Octopath Hunter class is basically a Pokemon subgame within the game. (Which is why I started with Haanit and Ochette)

 

[StereoVsn]

Isnt there like a whole RPG class known for summoning "characters" who do the battling for them?
Hell Octopath Hunter class is basically a Pokemon subgame within the game. (Which is why I started with Haanit and Ochette)

This is more specific vs just "summoning". It's identifying a place on a combat map, summoning in that particular place and having the summon take action depending on enemy presence in that location. Or something to that order.

It's still bullshit and concepts like this should not be able to be patented. If someone with a decent lawyer team sued, this could probably be overturned, but who would have the resources and the will to go against Nintendo.

 

[Evil Calvin]

Fuck Nintendo!

 

[Saber]

If getting something as silly and common in video games as patent isn't something to worry in their eyes so the entire game land area is doomed, because whonever they decide to attack they can simply put a patent and are good to go.
Next they will be patenting water.

 

[Cyberpunkd]

Honestly, I'm speechless and a bit disgusted. This could set a dangerous precedent for other companies trying to patent well-known systems.

Nintendo in this thread:

 

[nemiroff]

For the record, the us patent office makes 5 billion USD annually...

 

[Cakeboxer]

I really don't like this practice. Protecting names and designs is fine, but gameplay mechanics? Just imagine if companies had locked down the whole Ubisoft open-world formula, detective vision, grapling hook or the freeflow combat system.

 

[Scrawnton]

So. We're never gonna see another warlock class in any rpg now.

Read the patent...

Isnt there like a whole RPG class known for summoning "characters" who do the battling for them?
Hell Octopath Hunter class is basically a Pokemon subgame within the game. (Which is why I started with Haanit and Ochette)

This patent would not apply to turn based games though. It also would not apply to something like persona where you aren't summoning but channeling. People really need to read the specifics of the patent before making assumptions. You'd have to be very specifically trying to clone the mechanics of Pokemon S/V and Legends in order to infringe this, and I doubt that would happen accidentally.

Palworld on the other hand... Palworld might infringe on this patent because its monster summoning mechanics at launch (haven't played since) were nearly 1:1 for what was in Legends and S/V... And considering the developers history with working with Nintendo and their past games ripping off Nintendo's mechanics, I don't think it passes the sniff test of just being a coincidence.

 

[Dr.Morris79]

Palworld really touched their bottom didn't it.

 

[Zacfoldor]

Warner Bros. Interactive Entertainment holds the patent for the Nemesis system. You aren't pissed at them are you?

Look, you can do what you like but being pissed at Nintendo for a move done by the patent office is crazy. It can't hurt to ask. Don't be pissed because someone had the nerve to ask something.

Like, if I asked you to buy me a steak dinner and drive it to my house, and you do it, be mad at yourself. All you had to do was say no. All the patent office had to do was say no. They say no all the time. They didn't. Why are you mad at Nintendo. What do you imagine Nintendo did to make them respond a certain way?

Spoiler alert, they did nothing. They just asked. It's like being mad at the dude your girlfriend cheated on you with. Why aren't you mad at her, she's the one that cheated? The other dude just asked. You have misdirected anger here.

 

[mdkirby]

Incompetence is not corruption. This really should have been flagged as unpatentable by Nintendo's internal IP team. FFS they are patenting prior art that has existed in products in their industry for decades.

Ofcourse, but I also dont think corruption shouldn't be ruled out, it happens. The rapid passing and unusual nature of the way it was processed vs the norm is cause for caution/consideration

 

[IFireflyl]

Warner Bros. Interactive Entertainment holds the patent for the Nemesis system. You aren't pissed at them are you?

The difference is that Warner Bros. Interactive Entertainment also invented the Nemesis system. Nintendo didn't invent summoning and/or battling summons.

 

[Nintendo's Witch]

lmao

 

[Mikado]

brb, submitting my patent for "A method for discretizing continuous surfaces in 3 dimensions by triangular primitives."

Then I can just sit back and wait for those checks to start rolling in from... literally everyone!

 

[Fbh]

It's absolutely ridiculous that any company is allowed to patent stuff like this.
The industry, including many Nintendo games, is built on devs learning and borrowing elements from eachother.

The difference is that Warner Bros. Interactive Entertainment also invented the Nemesis system. Nintendo didn't invent summoning and/or battling summons.

That's irrelevant. WB shouldn't have gotten that patent either.
If everyone had just patented every new gameplay mechanic and concept they came up with, then the gaming industry wouldn't have developed the way it did over the last 50 years.
The vast majority of your favorite games, regardless of what they are, probably wouldn't have been able to be made because they almost certainly use gameplay mechanics they didn't invent.

 

[IFireflyl]

That's irrelevant. WB shouldn't have gotten that patent either.
If everyone had just patented every new gameplay mechanic and concept they came up with, then the gaming industry wouldn't have developed the way it did over the last 50 years.
The vast majority of your favorite games, regardless of what they are, probably wouldn't have been able to be made because they almost certainly use gameplay mechanics they didn't invent.

Rules for something to be patented:

1. Novelty: It hasn't been done before in the same way.
2. Non-obviousness: It isn't an obvious step to someone skilled in the field.
3. Utility: It has a clear use.

The USPTO has granted patents on gameplay mechanics. Furthermore, U.S. courts have upheld the validity of some of these patents when challenged. That means, as a matter of law, gameplay mechanics are patentable. They aren't just theoretically patentable, but actually patentable in practice. Whether the laws need to be modified or not is a separate issue. In the here-and-now, the Nemesis system is legally different from summoning and battling as the Nemesis system was unique at the time of the patent, whereas summoning and battling were not.

 

[diffusionx]

Read the patent...


This patent would not apply to turn based games though. It also would not apply to something like persona where you aren't summoning but channeling. People really need to read the specifics of the patent before making assumptions. You'd have to be very specifically trying to clone the mechanics of Pokemon S/V and Legends in order to infringe this, and I doubt that would happen accidentally.

Palworld on the other hand... Palworld might infringe on this patent because its monster summoning mechanics at launch (haven't played since) were nearly 1:1 for what was in Legends and S/V... And considering the developers history with working with Nintendo and their past games ripping off Nintendo's mechanics, I don't think it passes the sniff test of just being a coincidence.

I'm totally opposed to these patents and 99.9999999% of software patents in general... but the convo around them always veers into retardation because people don't understand nuance.

I know everyone complains about the WB Nemesis patent - with reason - but the fact is, if a dev really wanted to to do somehting similar, there are an infinite ways to do it without violating the patent. They just don't want to. Hell, WB doesn't want to do anything with the patent.

 

[Fbh]

Rules for something to be patented:

1. Novelty: It hasn't been done before in the same way.
2. Non-obviousness: It isn't an obvious step to someone skilled in the field.
3. Utility: It has a clear use.

The USPTO has granted patents on gameplay mechanics. Furthermore, U.S. courts have upheld the validity of some of these patents when challenged. That means, as a matter of law, gameplay mechanics are patentable. They aren't just theoretically patentable, but actually patentable in practice. Whether the laws need to be modified or not is a separate issue. In the here-and-now, the Nemesis system is legally different from summoning and battling as the Nemesis system was unique at the time of the patent, whereas summoning and battling were not.

Yes I know that legally they can be patented, this thread is literally about a game mechanic being patented. I'm saying I find the concept of being able to patent such mechanics ridiculous, regardless of what is actually legal or not.

Summoning and battling aren't unique now, but at one point in the history of videogames they were, and I don't think whoever first came up with it should have been allowed to patent it either (if they had wanted to).

 

[Perrott]

Warner Bros. Interactive Entertainment holds the patent for the Nemesis system. You aren't pissed at them are you?

They just pattented a technical implementation towards the end results that the Nemesis System brings to the table.

Which is not the same as pattenting game design itself; and also didn't stop former Monolith developers who were making that cancelled Black Panther game for EA to work on and implement a successor to the Nemesis System into their project, or Ken Levine who is making a similarly fancy system for the upcoming Judas. Why not? Because there could be several different technical implementations that get you to the same or similar point.

 

[IFireflyl]

Yes I know that legally they can be patented, this thread is literally about a game mechanic being patented. I'm saying I find the concept of being able to patent such mechanics ridiculous, regardless of what is actually legal or not.

Summoning and battling aren't unique now, but at one point in the history of videogames they were, and I don't think whoever first came up with it should have been allowed to patent it either (if they had wanted to).

I'm not sure why you bothered to respond to me in the first place then. I had responded to someone else to say why these were, legally speaking, not the same things. Then you responded to tell me that what I said was irrelevant, and that the Nemesis system shouldn't have been patented either. What I said wasn't irrelevant. You just jumped into someone else's conversation to go on a tangent.

 

[ReyBrujo]

This could set a dangerous precedent for other companies trying to patent well-known systems.

Most of these "well-known systems" are already patented in Japan, for example. Like a high score table, transition from third-person to first-person, or the demo played if you don't start the game. It's just that companies don't enforce them.

Fix the system, companies will continue abusing it until it is fixed (unless they want it broken...).

 

[tkscz]

I assumed purely based on Nintendo getting away with this that the patent office is full of people who don't understand video games and/or don't care, so just let the patent go through not understanding what this means.

This should not have passed with how vague the patent is.

Most of these "well-known systems" are already patented in Japan, for example. Like a high score table, transition from third-person to first-person, or the demo played if you don't start the game. It's just that companies don't enforce them.

Fix the system, companies will continue abusing it until it is fixed (unless they want it broken...).

And if we're being honest, Nintendo probably won't enforce it on everything but they WILL use it against indie games that look too much like Pokemon. Which will scare indies away from making RPGs like it.

 

[PlayStaytion]

Warner Bros. Interactive Entertainment holds the patent for the Nemesis system. You aren't pissed at them are you?

Look, you can do what you like but being pissed at Nintendo for a move done by the patent office is crazy. It can't hurt to ask. Don't be pissed because someone had the nerve to ask something.

Like, if I asked you to buy me a steak dinner and drive it to my house, and you do it, be mad at yourself. All you had to do was say no. All the patent office had to do was say no. They say no all the time. They didn't. Why are you mad at Nintendo. What do you imagine Nintendo did to make them respond a certain way?

Spoiler alert, they did nothing. They just asked. It's like being mad at the dude your girlfriend cheated on you with. Why aren't you mad at her, she's the one that cheated? The other dude just asked. You have misdirected anger here.

Are you the real Voice Actor of Vegeta?

 

[PlayStaytion]

The difference is that Warner Bros. Interactive Entertainment also invented the Nemesis system. Nintendo didn't invent summoning and/or battling summons.

You can't patent a 4 letter word, c'mon!

 

[diffusionx]

Most of these "well-known systems" are already patented in Japan, for example. Like a high score table, transition from third-person to first-person, or the demo played if you don't start the game. It's just that companies don't enforce them.

Fix the system, companies will continue abusing it until it is fixed (unless they want it broken...).

I know nothing about Japanese patents but here they expire after 20 years. So any of those types of patents would have expired long ago.

 

[PlayStaytion]

That's basically a death sentence to all low powered mobile devices to have the privilege of having fun games without breaking your bank account. The industry is surrounded around AMD and this is pathetic.

 

[Cao Cao]

What's next? Are Turn Based Battle System copyrighted by one company too?

 

[Zacfoldor]

Are you the real Voice Actor of Vegeta?

Haha, no. That's Chris Sabat or Ryo Horikawa.

 

[Fahdis]

Obligatory: FUCK NINTENDO!!!

 

[PlayStaytion]

Haha, no. That's Chris Sabat or Ryo Horikawa.

You look like a fan, you talk like him.

 

[Aretak]

Warner Bros. Interactive Entertainment holds the patent for the Nemesis system. You aren't pissed at them are you?

You're completely out of touch. People have been pissed at that one ever since it was granted, and what a waste of a good idea it is. Just as people were pissed at Namco having a monopoly on loading screen mini-games back when that was a thing. The Nintendo fan victim complex is hilarious. Companies should be called out when they do shitty things, regardless of whether they're "entitled" to or not.

 

[Walliwallipaloo]

It's like being mad at the dude your girlfriend cheated on you with. Why aren't you mad at her, she's the one that cheated? The other dude just asked. You have misdirected anger here.

This is the dumbest take on any subject that I've ever heard. Full stop. Bar none.

WTF, dude. Seriously.

Nintendo is intentionally acting in bad faith. No, terrible faith. This is 100% on them.
It's like trying to patent characters in film balling their hands into a fist and shouting angrily. Or looking up at the camera shouting "nooooo!" This is on that level. This is crazytown.