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

News that the head of the US Patent Office ordered the agency to conduct a re-inspection patent presented to Nintendo in early September This is both highly unusual (it's been more than a decade since the agency last made such a move) and a very welcome development.

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

The patent describes a very common gaming mechanism, and by filing for it, Nintendo was acting like a common patent troll rather than a respectable company. By issuing this permit, the US Patent Office revealed that he fell asleep at the wheel. At least one of these parties is now trying to correct the situation.

Nintendo is well known as one of the most controversial companies in the gaming business. The charm of its family-friendly characters and worlds often stands in stark contrast to the unbridled aggression of its legal team (a contrast, it is often noted, that the company shares with Disney).

Although his heavy-handed legal antics are often met with criticism from fans, especially when they end up targeting things like fan projects, tournament organizersAnd online creators There's usually a quiet approval in the industry for how Nintendo is taking care of business. His aggressive persecution of pirate groups, modders and jailbreakers (and, more controversially, emulators) is largely seen as serving the greater good of the industry, even if the stigma it attracts means few are willing to publicly sing its praises.

Not this time. It's hard to find anyone in the industry who doesn't think Nintendo's “challenge patent” is crazy, bad, and dangerous to everyone. While there was certainly some public outcry following the announcement of the patent, it is safe to assume that the decision of US Patent Office Director John A. Squires to order its reexamination (which, as Games As stated in its report, which has not occurred since 2012) occurred after concerns were raised in behind-the-scenes discussions with other major companies in the industry.

It's good news that it's being revised, and it'll be even better if it's cancelled. This does not change the fact that it should never have been filed and should never have been awarded. This, of course, does not change the broader problem that patent offices around the world seem ill-prepared to address the nuances of gameplay-related patents (which may shouldn't exist at all), nor the fact that Nintendo has recently seen fit to abuse the lack of clarity in the system with a flood of patent applications that directly threaten many other companies in the industry, including many of Nintendo's closest partners.

Of course, Nintendo is no stranger to patent filings (though historically it has tended to focus more on hardware-related patents), but this latest brouhaha is motivated by the company's highly controversial moves. Legal proceedings against the developer Palworld Pocketpaira civil suit currently agonizingly working its way through Tokyo courts.

What lawsuit has been going on for more than a year (Japanese courts are not known for their fast pace of processing cases) and depends, of course, on some Japanese Nintendo patents, and not on any applications from the United States. However, all of this is somewhat interconnected: if US patents run aground, it will not go unnoticed by the Japanese patent offices, especially if it is due to prior art claims.

Palworld, as you probably remember, launched under the unofficial slogan “Pokémon with guns.” Granted, that wasn't Pocketpair's wording, but if you've spent years in a lab trying to formulate the perfect combination of words to give Nintendo's lawyers an aneurysm, you couldn't have come up with anything better. Some kind of legal response always seemed likely, but a patent case backed by the filing of terrifyingly broad gameplay patents is perhaps the most industry-wide-damaging way Nintendo could bring this lawsuit.

I think it's instructive to contrast what Nintendo is doing with Palworld – and the noticeable lack of support for this approach from the rest of the industry – with ongoing litigation between Sony and Tencent over Light of Motiram, which Sony claims is a copyright-infringing clone of the Horizon games.

Sony's argument here is based on a much more traditional and straightforward set of claims: by cloning many of Horizon's key elements, Tencent risks damaging Sony's intellectual property by misleading customers and effectively passing off its product as being associated with the Sony brand.

This is very different from the patent case that Nintendo filed against Pocketpair. Sony (at least in this case) does not claim ownership of individual gameplay mechanics; they claim that overall, Light of Motiram copies many elements from Horizon in a way that will create a cloned product that will cause confusion in the market.

Sony's case is, of course, clearer – not least because there is a whole narrative backdrop against which Tencent apparently turned to Sony with a proposal to develop a new game using the Horizon franchise, and then seemingly gave a new name to the work-in-progress when Sony said no (at least that's what Sony claims).

Palworld is much more different than any Pokemon game in existence, and Nintendo is at pains to convince anyone that it's a simple clone of one of its games. Even though the phrase “Pokémon with Guns” is so widely used by members of the public, it will likely be difficult to convince a court that it is causing genuine confusion in the marketplace.

This doesn't mean Nintendo was forced to resort to patent trolling. There was always another option: do nothing. You don't have to sue everything that moves, or anything even remotely similar to what you did too.

Any company would be very annoyed if someone released a game that so clearly builds on its previous work but adds important elements (like weapons) that it doesn't approve of in that context. However, a reasonable company will explore the legal options and, upon finding that there is really no case to be made in terms of cloning, passing off, or market confusion, will sigh and simply give it up.

Nintendo is not always a reasonable company, and more importantly, in this case, its legal team is acting unreasonably. Nintendo's aggressive defense of its intellectual property is generally understandable and often even commendable. Of the companies that have remained active since the days of the retro industry, Nintendo is one of the most active in re-releasing and using its old intellectual property, which is a reasonable basis for protecting its rights. The proliferation of pirated devices for DS consoles has also exposed Nintendo to a significant risk of piracy from some very well-organized and highly profitable criminals rather than BitTorrent jockeys in their bedrooms, making it clear that its legal team is more stubborn than most.

This whole episode is a giant overkill on Nintendo's part.

However, once you've unleashed the dogs of war, they're damn hard to get back on the leash – and it feels like Nintendo is more or less driven by the woefully poor judgment of its legal department on this matter, rather than a more holistic consideration of what's good for the company, for its relationships with partners, or for the industry it operates in as a whole.

Regardless of the final decision in the case against Pocketpair, or even what happens with these questionable patent applications, this entire episode represents a gigantic abuse on Nintendo's part. This is an overreach that may actually cause some harm to the company, given how these actions are understood by key industry partners, and the risk that patent authorities in multiple jurisdictions will view them as unreliable or dishonest.

It's normal for Nintendo to value its legal rights, but ironically, given the controversial patent, this company really needs to understand that it's not always appropriate to call a lawyer to fight a fight.