Avid gamers may have noted that, earlier in 2024, an early access game launched onto Steam – PalWorld. It is an open world game where players travel around, battling with and capturing monsters, which can then be used to battle other players.
no Pikachu here, guv
Now, some of you may be experiencing déjà vu – this sure sounds like the central conceit of Pokémon. Gotta catch ‘em all, after all.
Not familiar with Pokémon? It’s only the highest-grossing media franchise ever. You can play the games, watch the anime, sell your soul for a shiny Charizard, or even fly on the Pokémon Jet. It’s a serious moneyspinner.
That said, the pocket monsters in PalWorld have guns. QED – different game.
As readers will be aware, it is not possible to obtain copyright to a general feel of a video game; Call of Duty and Battlefield happily co-exist despite basically being the same game. There’s nothing specifically preventing PalWorld from building a Pokémon clone.
If an original work from the game were to be copied, however, such as a character model, then that would represent an infringement of copyright. Many observers at the time noted that many of the PalWorld character models did appear to be clear splices of multiple well-known Pokémon.
https://www.ign.com/articles/palworld-vs-pokmon-comparison-just-how-similar-are-the-designs
Comparing the appearance of the character models, side-by-side, as is the case in the linked article, I would probably be reasonably confident if I were The Pokémon Company that I could pursue a copyright infringement argument – the similarities are too remarkable to be anything other than copying.
It therefore comes as something of a surprise that the arena that has been chosen for an intellectual property battle is in the field of patents. Patents can, of course, be used to protect technical or conceptual inventions, though not software per se.
Nintendo have issued a statement on their website that they are litigating at least one Japanese patent, in conjunction with The Pokémon Company, effective 18 September 2024. No details of the patent in question have been forthcoming from Nintendo.
I had a dig around on Reddit to see if I could find anyone in the know who might have an idea as to which patent may be being enforced. Not the most sensible thing in the world to do for an IP professional, given the general position on lawyers *spit* on message boards, but nevertheless somewhat illuminating.
One suggestion is that the patent might be JP7398425. The Espacenet machine translation is not amazing, but a counterpart US patent application recites as follows:
1 . A non-transitory computer-readable storage medium having stored therein a game program that when executed by a computer of an information processing apparatus, causes the computer to perform operations comprising:
based on a received direction input, determining an aiming direction in a virtual space; and
in a first mode,
causing a player character to launch, in the aiming direction, a catching item for catching the field character disposed on a field in the virtual space, based on an operation input, and when the catching item launched hits the field character, performing successful-catch determination relating to whether or not the catching is successful; and
when the result of the successful-catch determination is positive, setting the field character hit by the catching item in a player’s possession, and
in a second mode,
causing the player character to launch, in the aiming direction, a fighting character, and causing the field character and the fighting character to start fighting against each other on the field.
What appears to be generally described here is the action of aiming and throwing an object (a Pokéball) to catch a fighter (a Pokémon) in a video game, and then aiming and throwing said object to let the fighter out to conduct fights against other fighters (a Pokébattle, would you believe).
If that’s accurate, then I have to find myself a little dumbstruck. Figure 1 of the patent is a Nintendo Switch console. ‘My kids’ have such a console, and ‘they have’ several Pokémon games for it, several of them pre-dating the priority date of the patent in question. At least some of the features listed in claim 1 are present in those games, and at a conceptual level, have been present in Pokémon games since the mid-90s.
Figure 1 of JP7398425B2
I have to presume that Nintendo’s strategy here is to use their deep pockets to overpower Pocketpair. I think you could probably construct a reasonable inventive step attack on the claims of JP7398425B2 on the back of an envelope; the mechanistic difference of claim 1 to the original Pokémon games appears to be the concept of ‘receiving a user input to select an aiming direction’, and most modern video games have this feature. On that basis, the patent seems to have a realistic chance of revocation.
That said, the patent will only be revoked if Pocketpair defend the litigation. Defending an allegation of patent infringement will likely be far more costly than defending a copyright action, and therefore even though I would anticipate that Nintendo would be more likely to be victorious on copyright grounds, it seems as though the strategy is to inflict maximum financial toll on a small company that can ill afford to do so. Looking into my crystal ball, the most likely outcome is that Pocketpair cannot afford to defend the litigation, and there is an out-of-court settlement that ends with PalWorld disappearing from the face of the Earth. Even if Pocketpair contest and win a patent suit, it seems certain to me that Nintendo would then follow up with their ace in the hole – a takedown order based on copyright infringement.
So, what lessons can we take from this?
- If you are a start-up, hoping to ride on the coattails of existing IP in some form – be wary. If your business fails, you won’t appear on the radar of the rights holder, most likely. If you succeed, as in Pocketpair’s case, there will be a big target on your back. I don’t know what advice Pocketpair may have taken before launch, but I would certainly have been advising them to alter their character models so that they weren’t so clearly Pokémon knock-offs (compare with the clearly distinct character models in Cassette Beasts).
- If you are the rights holder, it can pay to be patient. Nintendo and the Pokémon Company have not rushed into litigation, as many expected them to do so in January 2024. They have, presumably, carefully considered the best options for making a public demonstration of Pocketpair, and thus what happens to competitors who seek to become disruptors in their sphere of influence.
- Has this strategy backfired already, however? One of the big problems that Nintendo have had is that the general online consensus is that PalWorld is simply a better game than any of the most recent Pokémon offerings, and the more players that can experience PalWorld, the more problematic it becomes for the Pokémon brand. Has this already taken too long?
Only time will tell. We will just have to wait and see if sparks fly in court.
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