Nintendo v Palworld: Global Implications for Patent Law (Term Paper)

INTRODUCTION

During this term, we have touched on international agreements related to copyright and trademark law, which allow intellectual property owners to protect and enforce their rights across multiple jurisdictions. These agreements enable creators to easily and effectively safeguard their works in countries that are party to the agreements. [1]

However, a major gap exists in the realm of patent law, as there is no equivalent, comprehensive international framework to protect patent rights globally. While the Patent Cooperation Treaty allows an inventor to file a single application to assess the patentability of their invention across 157 jurisdictions, they still must navigate each jurisdiction’s individual patent approval process to secure protection within that region. [2]

This lack of a unified registration system presents significant challenges for inventors, who must file separate applications in each jurisdiction where they desire patent protection. If a country is missed, there is nothing to prevent others in that country from exploiting the patent. This can lead to considerably high expenses and inconsistent results, which may ultimately discourage inventors from seeking patent law protection in the first place.

THE PROBLEM

I believe a key factor contributing to the difficulty of reaching an international patent registration system is the disagreement between different jurisdictions regarding what constitutes patentability This can be illustrated in the case of Harvard College v. Canada, where Canada denied the patentability of the Oncomouse (a genetically modified mouse) despite approval in other countries including the United States, Europe, and Japan. [3] Similarly, the patent application for DABUS (an AI system credited with being an inventor) was approved in South Africa, but was rejected in most other major jurisdictions. [4]

For this post, I would like to focus on a current dispute in Japan involving Nintendo, which underscores the ongoing tension surrounding patentable subject matter. The dispute is centred around a company named Pocketpair and their video game Palworld.

Palworld was released in January 2024 as an open-world multiplayer survival game where players can capture, train, and battle creatures known as “Pals.” The game is often described as “Pokémon with guns”. This description comes from the strikingly similar artistic design and styles of the Pal characters, who are sorted into different creature types such as Fire, Water and Grass. The game also allows players to acquire new Pals by throwing balls to capture them, similar to throwing Poké Balls in Pokémon. [5]

Pokémon is one of Nintendo’s most iconic and successful franchises, and Palworld appears to have borrowed many of Pokémon‘s features. Nintendo has a history of engaging in legal disputes to protect its intellectual property. Given the striking similarities between the Palworld and Pokémon, it was unsurprising when Nintendo took action against Pocketpair in September 2024. What was surprising however, was that Nintendo’s lawsuit was not based on copyright or trademark infringement, despite the similarities in character design. Instead, Nintendo launched an action based on patent infringement. [6]

NINTENDO’S PATENTS

The action was initiated in Japan where Nintendo’s patents were registered, and Nintendo alleged that three of its patents were infringed: 

• Patent No. 7545191 [7]: This patent covers a mechanic for capturing creatures by throwing an object, such as a Poké Ball, in a virtual environment. It involves defining the aiming direction based on player input and determining capture success. Nintendo claims that Palworld’s creature capture system is too similar to this patented gameplay method.
• Patent No. 7493117 [8]: This patent focuses on character movement and collision, specifically in scenarios involving character interactions and pathfinding. It also addresses a mechanic where players engage in battles by launching one creature at another. Nintendo alleges that Palworld’s mechanics around creature combat infringe on this patent.
• Patent No. 7528390 [9]: This patent describes a dynamic mounting system for characters moving across land, air, and water, allowing seamless transitions between different types of terrain. Nintendo argues that Palworld’s use of a similar system for player-controlled creatures and mounts infringes on this patent as well.

In summary, Nintendo holds patents on three gameplay mechanics: throwing a ball to capture creatures, creatures engaging in combat with each other, and utilizing creatures for travel within a game world. Essentially, Nintendo is asserting these mechanics as technological innovations that should be exclusively theirs, preventing other developers from incorporating similar features in their games. It should be noted that these three patents were applied for and registered after Palworld was released. [10]

From a legal standpoint, Nintendo appears to be complying with the law and legitimately enforcing their rights under the Japanese legal system. In addition, gameplay mechanics have been accepted as patentable in other jurisdictions – for example, the Nemesis system in the game Middle-earth: Shadow of Mordor has been patented in the United States. The Nemesis system tracks player interactions with NPC enemies, dynamically altering the NPCs’ behaviour and relationships based on past encounters. [11]

I would argue however, that this Nemesis system represents a more legitimate technological innovation given its unique, complex and innovative features which create a highly personalized experience for gamers. In contrast, the Nintendo patents being asserted against Palworld are very broad and applicable to many other video games. These patents have the potential to hinder the development of other games, and thus shouldn’t be allowed to be patented at all.

Fortunately, the scope of Nintendo’s dispute with Palworld is confined to Japan and its legal framework. Furthermore, I believe Nintendo would likely struggle to have the same patents approved in Canada. Under Canadian law, for something to be patentable, it must be an “invention” that is novel, useful, and non-obvious. An “invention” refers to any art, process, machine, manufacture, or composition of matter. Given the broad nature of Nintendo’s patents, they would likely fail to meet all these requirements in Canada. [12]

Nintendo could attempt to argue that its patents qualify as a “process” within a video game. However, I would argue that these patents are overly broad, abstract, and conventional, making them more akin to cooking techniques, which are non-patentable. Another challenge Nintendo would face in Canada is meeting the novelty and non-obviousness requirement. The gameplay mechanics outlined in the patents are similar to common features seen in other games, and if the patents are deemed overly broad or abstract, they may be rejected for lacking the necessary technical or novel qualities.

Thus, I seriously doubt that Nintendo would be able to successfully register its Japanese patents in Canada. I believe that other jurisdictions, such as the United States or the EU, would likely reject these patents as well, which is good news for the gaming industry.

FINAL THOUGHTS

Despite Nintendo’s patents likely having no merit in the rest of the world, it is alarming that Japan would approve the patents in the first place. This situation underscores the ongoing conflict between jurisdictions over what constitutes patentable subject matter, which is likely a significant impediment to any sort of international patent registration framework. If this conflict could be resolved, and such a framework could be established, then the innovation and progress that patent law is meant to foster could be significantly accelerated, which ultimately benefits society as a whole.

1. For example, the Berne Convention for the Protection of Literary and Artistic Works Universal Copyright Convention for copyright law, and the Madrid Agreement and Madrid Protocol for trademark Law.
2. https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/patents/patent-application-and-examination/file-international-patent-application-through-patent-cooperation-treaty-pct-patent-cooperation
3. Commissioner of Patents v. President and Fellows of Harvard College, 2002 SCC 76
4. https://www.ipstars.com/NewsAndAnalysis/The-latest-news-on-the-DABUS-patent-case/Index/7366
5. https://www.pcmag.com/news/first-look-palworlds-not-bad-but-im-mad-i-bought-it
6. https://www.windowscentral.com/gaming/palworld-nintendo-patent-infringement-lawsuit-heats-up
7. https://patents.google.com/patent/JP7545191B1/en
8. https://patents.google.com/patent/JP7493117/en
9. https://patents.google.com/patent/JP7528390/en
10. https://gamesfray.com/nintendo-the-pokemon-company-v-pocketpair-palworld-patent-infringement-lawsuit-attempts-to-monopolize-game-rules/
11. https://dwo.co.il/the-patent-protection-of-the-nemesis-system-of-the-game-middle-earth-shadow-of-mordor/
12. Sections 2, 28.2 and 28.3 of the Patent Act, RSC 1985, c P-4