Newly Granted Nintendo Patents An ‘Embarrassing Failure’ By The USPTO, Says Patent Attorney

As you will hopefully recall, that very strange patent lawsuit between Nintendo and PocketPair over the latter’s hit game, Palworld, is ongoing. At the heart of that case is a series of overly broad patents for what are generally considered generic game mechanics that also have a bunch of prior art from before their use by Nintendo in its Pokémon games. These include concepts like throwing a capture item at an NPC to collect a character, as well as riding and mounting/dismounting NPCs in an open world setting. The result, even as the litigation is ongoing, has been PocketPair patching out several of these game mechanics from its game in order to protect itself. That it feels this is necessary as a result of these broad patents is unfortunate.

And, because of the failure of the USPTO to do its job, it seems things will only get worse. Nintendo was awarded two additional patents in just the past couple of weeks and those patents are being called an “embarrassing failure” by patent attorney Kirk Sigmon.

The last 10 days have brought a string of patent wins for Nintendo. Yesterday, the company was granted US patent 12,409,387, a patent covering riding and flying systems similar to those Nintendo has been criticized for claiming in its Palworld lawsuit (via Gamesfray). 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.”

And as Sigmon goes on to note, the failure is multifaceted in both instances. Sigmon notes that both patents are for mechanics and concepts that ought to be obvious to anyone with a reasonable amount of skill in this industry, which ought to have made them ineligible to be patented. That standard of patent law only works, however, if the USPTO acts as a true interlocutor during the filing process. In both of these cases, though, the USPTO appears to have not been in the mood to do their jobs.

Sigmon notes that it is common for patent applications like this to show some amount of questioning or pushback from the examiner. In both of these cases, that seemed almost entirely absent from the process, especially for patent ‘397.

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.

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.”

It’s hard to know what to say here. I obviously can’t crawl inside the head of whoever examined these patents at the USPTO. To that end, it would be irresponsible to claim that this is obvious laziness by a government employee, though on the surface that’s certainly what this looks like. Absent more information that is not currently available, any alternate theories as to why these applications were handled is mere speculation.

But with the Palworld example fresh in our minds, we do certainly know what the granting of patents like this will result in: more patent bullying by Nintendo.

“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.

And in the current environment, where challenging bad patents has become essentially pointless, you can bet we’ll see Nintendo wielding these patents against competitors in the near future.

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