After months of will they / won't they, Nintendo and The Pokemon Company have filed a lawsuit against Palworld developer Pocketpair for alleged patent infringement. But, one industry intellectual property expert says it's "unlikely Nintendo owns any valid patents that are so powerful as to prevent Pocketpair from making Palworld."
Speaking on Twitter, former Blizzard consultant and author of the popular FOSS Patents blog Florian Mueller weighs in on the situation and then some. While Mueller admits the situation is "tricky," he goes on to say that "it may boil down to nothing but bullying by a frustrated incumbent who hates a successful newcomer.
"It looks like they are not suing over creative rights relating to how Palworld characters look, though that is what they originally appeared to be concerned about," he says. "Patents cover technical inventions, except for U.S. design patents.
"In Japan it appears that they don't call design rights 'patents' and this means they must be suing over software patents that will have nothing to do with what Palworld looks like. Those could be patents on, for instance, 3D image rendering. Such techniques can be used to make something that looks like Pokemon and they can also be used to make something that looks like Warcraft."
Mueller goes on to say it's unlikely that Nintendo owns any patents strong enough to "prevent Pocketpair from making Palworld." That's partly because most of them can be worked around by using a different technique to achieve the same effect or something close enough.
"Small and young companies like Pocketpair don't own patents over which they can countersue, but sometimes they acquire them so they have leverage," Mueller adds. "Pocketpair could try to buy some patents on the market that can be asserted against Nintendo for retaliatory purposes."
Ultimately, a challenge many people are facing right now - Mueller included - is a lack of information. Nintendo's announcement doesn't go into specifics, and even Pocketpair has said it's waiting to hear what patents it has actually allegedly infringed.
What could be ahead, though, is a rather long road. Mueller says arguing the case in Japan makes sense as both companies are local, but a loss for Pocketpair wouldn't prohibit it from offering the game to the rest of the world – "So if they wanted to take it off the US market, they'd have to sue in a US court," Mueller says. That doesn't mean, however, that Nintendo wouldn't do that. "It's possible that Nintendo is totally prepared to escalate further," he adds.
