Vetting the reported dangers of a US patent recently granted to Nintendo regarding game and summoning mechanics tied up in Pokemon, IP expert and games industry veteran Florian Mueller reckons the overbroad patent was approved almost entirely uncritically precisely because no other games were evaluated by the examiner.
Legal and game experts have questioned how this patent, US 12,403,397, which presents potential conflicts with countless games where a player character summons the described "sub characters" in battle, was approved when so many games that predate it show that such mechanics are not uncommon. Mueller, reviewing the examiner's references and searches alongside Nintendo's own disclosures (which point to a page on the Pokemon website), suggests those games were never even considered.
"This Nintendo patent was apparently granted without a patent examiner looking at a single game," he writes in a recent article on games fray.
Mueller targeted some interpretations of the patent – widely excoriated by folks like video game patent lawyer Kirk Sigmon (per PC Gamer) as "an embarrassing failure of the US patent system" – which suggested that it could be easily invalidated if push came to shove.
"Invalidation is easier said than done," Mueller counters. He goes on to interrogate how and why examinations may pass over important references in a situation like this, most notably prior art, and why invalidations that may seem obvious to some observers – like a "Person of Ordinary Skill in the Art," as Sigmon said, meaning someone with basic working knowledge of the field – may not be a silver bullet in actual legal challenges.
"We mentioned that the United States Patent and Trademark Office (USPTO) has recently made it more difficult to challenge granted patents," he says. "It’s also worth noting that if a validity determination must be made in a U.S. court, it will be put before a jury most of the time, but U.S. juries are extremely hesitant to conclude that a government agency made a mistake.
"Jurors are routinely shown a video that portrays the USPTO as omniscient and incredibly thorough. The video shows images of patent examiners in lab coats, jointly looking at something, but how it actually works is that patent examiners sit at a desk and have a rather limited amount of time available per patent application."
Separately, Mueller stresses that "one can always view the threat level differently, but in principle, the concerns that others voiced over hundreds of games being at risk were valid." He reiterates that the claims of the patent, with claim 1 being "the broadest and therefore most threatening one," could become a hazard for other games depending on how the patent is enforced or interpreted.
Mueller's argument reinforces the seriousness of the patent's approval. It sounds like an obvious overreach to many people – and Mueller himself points to games as old as 1975's Gun Fight as arguable prior art precedent for games with multiple battle systems, as described in the patent summary – but the US patent office didn't see it that way, creating potential creative minefields or legal burdens for other games and developers. In essence: its very existence is a danger.
