So normally I don't do this sort of thing. I normally like to talk about subjects well after the subject has cooled off and everyone has more room to think rationally rather than acting on emotion. However, today's subject will have side wide reaching ramifications on the game industry that I feel compelled to speak on it.
For those who aren't in the know, there was a game released in early 2024 called Palworld. It's an Open World Action game with a monster catching mechanic developed by Pocket Pair, an independent game studio in Tokyo, Japan. Palworld has gone through a number of controversies since it first came to light, many of which were just drama bait. One of them, however, is somewhat related to this topic: that being the idea that Palworld infringes on the copyright of Nintendo's flagship monster catching franchise Pokemon.
Nintendo had announced earlier this year that they were going to investigate Palworld to see what claims were true and false about whether or not the game actually did infringe copyright. In case anyone's wondering, no it didn't. While it did take some inspiration from the perspective of artstyle and setting, Pokemon and Palworld are two distinct franchises that don't have too much overlap in the way of designs, nothing that can be copyrighted anyway, and the series are also completely different from each other mechanically. As some have said in the past, if Palworld really did infringe on Pokemon's copyright, Nintendo probably would've found it by now.
And it turns out Nintendo agree because rather than sue Pocket Pair for copyright infringement, they decided to sue for patent infringement. For those who aren't super well versed on the laws of copyright, trademark, and patent, allow me to explain.
All of these are forms of protections for your non-physical property but the way in which copyright and patent are distinct, to summarize, is that copyright protects the expression of your ideas but not the ideas themselves, whereas patents protect the ideas rather than said idea's expression.
To give you a concrete example, let's take a look at Street Fighter 2 and the original King of Fighters. These games mechanically shared quite a bit of overlap. They were both 2D fighting games with emphasis on martial arts and even used a lot of similar fighting styles for their characters. However, neither of these games infringes on the other's copyright. If you were to ask if Terry Bogard infringed on the copyright of Street Fighter by having a design similar to Ken Masters, you'd be very wrong. Although the characters share some design similarity in terms of color palette and personality, those two things are building blocks that cannot be copyrighted. If Terry Bogard looked exactly like Ken but was only a different color, that might actually be copyright infringement. But they're both simply blonde haired, red themed, martial artists that are also major characters in their settings.
With copyright, if you create a 2D fighting game, even if it has some similarities to Street Fighter 2, as long as nothing's overtly identical, your game is allowed to compete at the market. This changes with Patents.
According to Patent Law, the idea you have for your product that's expressed within the patent is something that you own the rights to temporarily. If Capcom, for example, Copyright Ryu in their Street Fighter series, you're not allowed to use Ryu himself but you are allowed to use characters with similar mechanics. If a Patent, however, is filed for a Shoto Archetype Characters in which their moves include an Invincible Reversal, a Projectile Attack, a Light-Medium-Heavy input system, and a decent movement speed, then even if your character was distinct from Ryu in most ways, making a character that has any or all of those traits would be completely illegal unless your game was also in some way published by Capcom.
Capcom themselves have not filed any patents that aware of but think of this as the starting point for understanding the Nintendo vs Pocket Pair lawsuit that is impending. Nintendo had been filing patents for a while but the ones that I had heard of initially were for The Legend of Zelda: Tears of the Kingdom. Things like "Loading Screen Text" and "Elevators" were among some of the things included in the patent list. Now, to my knowledge, none of Tears of the Kingdom's patents actually went through. However, one particular set of patents for Pokemon did.
The patents listed sort of go together but they're two separate ones. The first is to use Third Person Aiming to throw an item into the world in order to spawn an Actor from said item. The other is to use Third Person Aiming to throw an item into the world to then place an Actor into said item and place it in your inventory. If that sounds super technical, basically it refers to the act of catching monsters and summoning them later.
Now, this is all fine and dandy but the problem with this is that the way this patent is worded it may refer to a lot of things besides monster catching. It could refer to catching an enemy and then summoning them later like in many Western RPGs. It could refer to some sort of possession mechanic like in a Vampire or Sword and Sorcery game. It could refer to a Dating Sim's harem mechanics. Possibilities are abound but the Patent doesn't care about the context of the idea, only the idea itself.
Now for the specific Palworld case, there is something that could be a saving grace for Pocket Pair. That is that if the patent was not in effect when Palworld began development or at least began posting about development, it might be grandfathered in. For those who don't know, a Grandfather clause refers specifically to a situation where if an old precedent is replaced with a new one and your institution is built specifically with the old one in mind, you can abide by the old one instead but every new institution has to abide by the new one. In the context of video game patents, video games that existed before the patent went into effect will not be taken off the market but any new games looking to use a similar mechanic will be stymied.
Now then, I'm not particularly interested in this little caveat for one simple reason: even if Palworld is free and is allowed to run free, it doesn't change the fact that Nintendo have effectively taken ownership of an entire mechanic that affects an entire genre of games. Monster catching is in no way specific to Pokemon, and in fact high profile franchises like Digimon, Yokai Watch, and Shin Megami Tensei all have a similar set of systems. What this effectively means is that Nintendo and Pokemon can run around unimpeded but if any of those aforementioned franchises want to make a new game, the only way to do so would be to get into a business partnership with Nintendo.
This doesn't sound too bad yet but let's put this in perspective: Nintendo had previously attempted to force 3rd Party Developers to only make games for the Switch if it would ever get a Switch version, which basically prevents other systems, be it Playstation, XBox, or PC from getting a version of those games. At that time, those developers had to choose between releasing a Switch version and releasing versions of the game that don't include the Switch. Given the Switch's relative popularity, it doesn't seem like too much of a loss to just make your game for everything else and the Switch just misses out. However, with this patent in place, if you want to include anything resembling a monster catching/summoning mechanic, your only option is to work with Nintendo. This effectively means that if you want to include the mechanic and Nintendo say no to working with you, your game will either not get made at all or will have to be drastically revised to not include the patented mechanic.
This in turn gives Nintendo an extreme amount of bartering power by basically saying "If you don't like our terms, go work with someone else. Oh, wait, right, you can't!!" Which will have drastic knock-on effects for either removing competition or redistributing it such that it's all under Nintendo's umbrella.
I've been presented with the argument before that a bunch of companies that make competitor franchises will likely not stand for this. I have two arguments against this: number 1, is what I just said that these companies could just work with Nintendo and receive a slightly smaller but still potential cut, even if that cut also benefits Nintendo themselves. The other problem is that Nintendo is not the only one doing this.
Another party I'm aware of is Warner Bros. henceforth known as WB, filed a patent for the Nemesis system that exists within the Middle Earth games, specifically Shadow of Mordor and Shadow of War. I think the reason they got away with this initially is because there really isn't anything like The Nemesis System in other games, which meant the patent wasn't violating any form of competition by patenting something a lot of people were already making. However, the patent itself was filed in 2020 and does not expire until 2035. This means the patent will last for 15 years effectively and in so doing anyone who wants to make something like the Nemesis System will have to either wait until the patent expires or work directly under WB.
The fact that the trend is showing up in two different companies, one of which resides in North America, leads me to believe that what will actually happen is that patents on genre-defining mechanics will be taken on a first come first served basis and whoever patents the largest number of total genres wins the lion's share of the profits. Then any other big company that wants to make a competitor will need to work with the patent owner, effectively turning the competition into a partnership, only sort of worse because if Capcom were to copyright 2D Fighting game mechanics like I suggested earlier and Namco Bandai wanted to use some of those mechanics in Tekken or Soul Calibur, they would have to work with Capcom specifically to use the ideas filed under the patent which may come with a stipulation that Namco Bandai will be responsible for all their own funding but the patent owner still receives a cut of the profits.
This means that technically Tekken is still allowed to exist. But under this hypothetical scenario choosing to buy another product instead of the patent owner's won't really solve anything because that game will still need to offer some benefit to the patent owner in order to get made. So if you purchase Tekken 9 specifically as a middle finger to Capcom instead of purchasing Street Fighter 7 let's say, the patent dictates that Tekken 9 requires the business deal and if it is the listed above, Street Fighter 7 could receive absolutely no notable sales figures beyond the basic Street Fighter fandom but everyone who went on to purchase Tekken 9 will be helping Capcom indirectly via this business deal.
Under this dystopia where you can only use patented mechanics under the umbrella of the patent owner, it'll create a situation where there's no real competition and the rich will continue to get richer while everyone outside the industry will barely be able to get their foot in the door if they could. This has huge ramifications for the destruction of competition and competition is essentially what the free market thrives on.
The only remaining saving grace I can think of is that once a patent has been approved, it cannot be filed a second time, cannot be renewed, and cannot have its expiration date extended. This may result in a potential future where, after enough time passes, every idea has been successfully patented, the patents expire, and now everyone can use those ideas freely again. If the extent of the time waiting for any given patent is 20 years at most, and the vast majority of those patents are filed more or less within the same year, that means 20 years out all those mechanics will be freely usable by then.
The problem with this is that 20 years is a long time and the damage to the industry will be completely done by that point. The industry will either be fully taken over by a small set of mega-corporations or it'll just have dissolved entirely before then. Considering a lot of other stuff going on right now, I can't imagine the industry will last that long but who can even really say. This is also dependent on the idea that everything I said is true, and even if it is, the people who have all the buying power could just lobby to change the laws such that patents can be renewed, extended, and refiled a potentially infinite number of times, effectively meaning there will be no solution.
So what can be done? Well, first I think it's important to educate everyone you can on Patent Law. This is absolutely serious and while I'm mainly talking about video games, this could go on to affect other industries too. So the more everyone knows the better.
Secondly, we need to figure out a way to do something about Patent Law itself. The reason Patent Law initially existed was to allow small independents who had not a lot of connections but a lot of big ideas the opportunity to exist within a competition-free zone for about 6 months to 2 years normally. That way, when the patent expired, they'd be ready to take on the competition, almost like they spent that time training to put it into anime and game terms. Because of this, companies like WB and Nintendo, who are at the top of their respective industries, and in some cases more, shouldn't be allowed to file patents at all, and a patent that lasts for 15 years is just excessive. Even the smallest creator doesn't need that much time, certainly not a group that's already as profitable as these two.
I am 100% in favor of preventing Patents from being used by bigger corporations and the only way to stop that would be to make it so that Patents cannot be filed by entities that make beyond a certain amount of income per year or who work as part of a company that has too many employees. Keep in mind, I'm not looking at abolishing copyright or neutering it. I'm fine with big companies owning their intellectual properties so long as competition is allowed to thrive. Copyright gives you ownership of your work but still allows competition, Patent specifically eliminates competition which makes it much more severe.
If we can't find a way to revise Patent law to remove big businesses from its eligibility I'd be happy just removing patents entirely from protections on intellectual property. It'll make breaking into certain industries tougher for independents. However, having independents have a harder time competing is infinitely better than not allowing them to compete at all.
Finally, I would find a way to discourage people from purchasing games and playing them on Nintendo's platforms for the foreseeable future. It may take a hot minute but if working with Nintendo is stopped long enough for either the patents to expire or to get Nintendo liquidated, then that might be enough. The problem here is that Nintendo is not the only party that is an offender and others like WB don't have a centralized location that you can just boycott entirely.
So I'm hoping everyone who reads this spreads it around and raises awareness about what ramifications this could have going into the future.
That's all for today. Have a good night.
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