Propriété Intellectuelle

Nintendo goes Patent Route to Protect Zelda IP and Mechanics

From July 10 to August 4, 32 patent applications filed by Nintendo were made public in Japan, 31 of which concern the game mechanics in “Legend of Zelda: Tears of the Kingdom” (see naoya2k’s post in the Hatena Blog for a full list of the patent applications).

The hottest patents that are being discussed relate to the player character’s abilities, specific mechanics, and loading sequences. Our fascination lies with Nintendo’s attempt to use patents to protect the mechanics of a game.

Nintendo’s Patent Game

Notably active in patent filings, Nintendo ranked fifth in the number of patents held in Japan in 2022. A well-known example of Nintendo's previously registered patents include patent No. 8,313,379 related to Wiimote’s motion-tracking capabilities (see Patent Arcade: U.S. Patent No. 8,313,379: Video game system with wireless modular handheld controller). The new patents are considerably interesting because of the scale and the subject matters: mechanics! In particular, a mechanic that prevents the character from grabbing objects it is positioned on top of, a mechanic that results in the character moving in alignment with dynamic objects beneath it, and a mechanic that focuses on the character transitioning from one location to another seamlessly.

However, with the newest splurge Nintendo seems to be on a spree right now, likely due to the success of Tears of the Kingdom.

Protecting Mechanics a Never Ending Quest?!

The fascination surrounding this spree of applications is figuring out how developers can best protect their IP and brand. While there are several avenues, such as Trademark, Trade Secret, contractual obligations, confidentiality, copyright, and more, protecting a game’s mechanics and use of genre tropes is a uniquely difficult task that devs so keenly are interested in. In this blog the dispute between PUBG and Fortnite already put a spotlight on how copyright approaches this issue.

In short: U.S. law and U.S. courts have steered toward not awarding game mechanics copyright protection because they are so called unprotectable ideas and/or functional elements rather than protectable original expressions. However, the law is currently somewhat unclear as to when mechanics constitute functional elements outside of copyright protection and are protectable only by patents.

Hence, Patents as another tool, garner attention and likely more value in the future?

Is a Patent the Solution?

Generally, it is particularly difficult to patent game mechanics, primarily because software is often considered an abstract idea, and likely to be viewed as ineligible subject matter under Section 101 of the U.S. Patent Act. However, this obstacle may be overcome if the software improves computer functionality or performs the computing tasks in an unconventional way (Is Software Patentable in the United States?). Moreover, for any invention to qualify for patent protection, it must be unique and non-obvious. This means that the game mechanics being patented should not be already known or in use by others, and the differences between the game mechanics and prior game mechanics must not be obvious to someone with ordinary skill in the field of game design. Due to these criteria, utility patents for game mechanics are relatively rare.

Nonetheless, there have been noteworthy attempts by other companies to patent mechanics and features which often are not protectable otherwise. A notable example includes Bandai Namco's patent No. 5,718,632, covering loading screen minigames (Electronic Frontier Foundation: The Loading Screen Game Patent Finally Expires). The mechanic was patentable due to its novelty and nonobviousness, but it was not copyrightable due its functional nature. Another famous example includes Warner Brothers’ patent No. 15/081,732 for the Nemesis system used in both Middle-Earth: Shadow of Mordor, and its 2017 sequel, Shadow of War. This system generates personalized NPC opponents for the player to interact with (IGN: WB Games' Nemesis System Patent Was Approved This Week After Multiple Attempts). While the system was patentable due to its process description, it was not copyrightable as it lacked unique protectable expression.

Other Patent Issues: Costs and Process

Patents are also costly and difficult to obtain. The expense of filing a patent application varies based on its complexity, ranging between $7,000 and $15,000. In addition, you can generally expect the need to respond to up to five office actions, each of which may cost $2,000 or more. After filing the application, it usually takes 1 or two years before the initial office action is issued. Further, there is no guarantee that the patent application will be approved. For instance, Warner Brothers had to submit several patent applications before they received a patent on the Nemesis system. Its prior applications were rejected because of too close similarities to other patents and due to issues with the specificity of the language used in the prior applications. Thus, doing proper due diligence and carefully writing down realistic patent claims can be vital in order to save costs and to get a patent application approved (IGN: WB Games' Nemesis System Patent Was Approved This Week After Multiple Attempts).

So, no Patent for me?

Due to the costs and difficulties involved with acquiring a patent, generally patents are not a developer’s go to tool for protecting a game’s inherent value. This is particularly true for small and mid-size game developers with limited resources. For a small and mid-size game developer, other forms of intellectual property play a larger role, namely, copyrights, trademarks, and trade secrets. Having said that, if your game contains a mechanic that you regard as new, you might want to consider conducting patent due diligence to ensure that you are not infringing on someone else’s patent, and to file a utility patent if you think that the patent will bring your business additional value. As to the filing, see e.g. Zachary Strebeck’s article on video game patents, which contains an overview of the requirements for acquiring a game patent, and the costs related to the filing.

Author: Jesper Rantatulkkila and Daniel Koburger

Firm & News

Why Genre-Specific Games Can Co-Exist

Ever wonder how countless candy crush games can co-exist, or how developers have gotten away with cloning popular video games over the years?

That is because “clones” are (mostly earnest or, with a lot of good faith, can be viewed as) attempts to expand on gameplay ideas, and it is not legally possible for a single developer or company to own gameplay elements or even a whole genre. That is a result of copyright law’s purpose to only protect the unique expression of ideas, and never the ideas themselves – and a video game genre is an idea as opposed to an expression. Actually, imitation of gameplay ideas and genres is encouraged by Intellectual Property Laws so long as developers add their own spin on it. For at its core, copyright law incentivizes the creation of new works. Generally, this is good news as otherwise, we would be limited to only a few first-person shooters, role-playing games, racing games, etc., and such a lack of creative flexibility would be stifling for both developers and gamers.

What’s a genre, what’s an idea, and what do they have to do with games and copying gameplay

A video game genre is an idea. It is made up of so-called “tropes” and “scenes a’ faire,” without which a genre-specific game cannot be developed. In other words, a game genre is made up of specific and typical rules, mechanics, and gameplay elements, in addition to many other types of genre-specific and necessary elements that relate to elements like arche types, graphics, UI, etc. – the latter of which we will talk about another time. To exemplify, the basic gameplay of a fighting game (i) is to hit while not being hit; (ii) likely revolves around martial arts’ moves, with specific offensive and defensive maneuvers; (iii) between two or more opponents; (vi) displays a color-changing vitality bar at the top of the screen; and (v) the fighters from a side view, to name only a few elements that “make” the genre, and are considered part of the unprotectable idea. In contrast, it is the various, creative expressions of this general idea that enables a wide range of fighting games to exist. Each game has their own characters; their own story lines; their own different offensive and defensive moves; and so forth, etc. – you catch the drift. Essentially, its own unique way of combining the rules and mechanics, as well as all other components of the video game.

Copying can and cannot be infringement; Where are you on the scale?

Unfortunately, it isn’t all that simple: First, there is no legal definition of what is a mechanic and a rule; second, a judge would even less likely know what they are; and third, even if they were to know, it’s not as simple as: copying mechanics = no infringement. Rather, each situation must be looked at on a case by case basis. In certain cases, copying mechanics and rules could be infringement and in others it could not. That is because copyright protects the unique expression, which is reflected in the overall look and feel of all the elements involved, from infringement by substantially similar expressions. In other words: you can make your game based off an idea by using genre-specific elements, but you can’t use all of these elements together in such a specific arrangement that it resembles closely that of another game’s rules, mechanics, and gameplay elements. In short: You can’t copy and paste and then defend yourself with “I am only using genre-specific elements.” However, finding out where you end up lying on this scale, either all the way on the left, i.e. on the copying-an-idea side, or all the way on the right, i.e. on the you’ve-copy-pasted-the-unique-expression side, is a difficult task.

Other problems out there: Suing is a big unknown and expensive, and what about patents?

The difficulties of understanding where a game lies on this scale have several roots beyond copyright law’s homemade problems. One issue, which is beyond the scope of this blog, lies with the law’s uncertainty as to whether mechanics and rules are functional elements and therefore entirely outside of the realm of copyright, and only protectable by patents. Another concern lies with courts and judges’ inexperience with understanding video games and the expense of lawsuits if there is a difficult, unsolved question at hand. Because of that, there are limited samples of courts giving guidance to understanding how to handle this scale.

However, there have been circumstances, albeit rare, in which courts have determined that the scale has been tipped to the point of actually copying the unique expression of a game. By way of example, a claim against Fortnite: Battle Royale was dropped because it was clear that Epic Games had only copied the idea of the Battle Royale genre; whereas a federal court found that Tetris’s unique expression had in fact been copied by a Chinese developer and therefore found the developer liable for copyright infringement. The differences lie in what exactly was copied from the original game, and what (or the lack therefore) was added to create a novel way of expressing the same idea.

PUBG vs. Fortnite

At the beginning 2018, the creators of PlayerUnknown’s Battlegrounds (“PUBG”), Bluehole, filed for an injunction against Epic Games, claiming that Epic had copied PUBG’s game items and user interface (UI) in their subsequently released Fortnite: Battle Royale (“Fortnite”). According to Bluehole, Epic Games was liable for copyright infringement because some aspects of the new Fortnite mimicked that of PUBG: Both open with 100 players parachuting out of an airplane onto an increasingly shrinking island to duke it out until there is one sole survivor. It didn’t help that Fortnite’s own trailer proclaimed that the game was is in fact inspired by PUBG. However, Bluehole dropped their claim against Epic Games by the middle of the year.

Why didn’t this even make it to court? Because the only thing that Epic Games was “guilty” of was creating a game within the Battle Royale genre. The concept of the Battle Royale genre – last man standing on a shrinking island littered with enemies and weapons – is not new. In fact, it is actually derived from the Japanese cult-classic film “Battle Royale,” in which dozens of high-school students are placed on an island by their totalitarian government, given weapons, and forced to kill one another until only one person remains. And while the makers of PUBG may have released their battle royal video game before Epic, they cannot stop Epic nor anyone else for that matter from making its own version of the idea, so long as they haven’t amassed enough similarities to shift too far on the scale as to copy the unique expression of PUBG.

And Epic’s unique take on the genre is exactly why the look and feel of their version varies greatly from that of Bluehole’s: Fortnite’s cartoonish atmosphere creates a goofy undertone, which is starkly different from the somber, dire tone of PUBG; Fornite is a third-person shooter, whereas PUBG is a mixed first-person/third-person shooter; and there is a building aspect to Fortnite that PUBG doesn’t have: effectively constructing and destroying structures is a crucial survival component of Fortnite, while in PUBG players have no such option. These unique aspects of Fortnite is Epic’s creative way of expressing their own version of a Battle Royale videogame. And because Epic only reused the rules and mechanics of the Battle Royale genre while expressing it in a different manner, Bluehole’s copyright infringement claim was very likely a losing argument which would have been a huge waste of time and money to follow through with.

Tetris v. Xio – the difference between an idea and the expression of an idea

In contrast, Tetris Holding v. Xio Interactive illustrates what it looks like when a subsequently released game copies the unique expression of another and thus found to be liable for copyright infringement. In this case, the owner of the immensely popular video game Tetris, Tetris Holding, brought suit against defendant Xio Interactive, Inc. for copying their original expression of Tetris’s game play in their game Mino. Here, the court was able to distinguish between Tetris’ genre – a puzzle game where the user manipulates pieces of falling blocks to create horizontal lines – and the ways Xio deliberately copied Tetris’s unique expression. The court found Mino to be identical to Tetris in ways beyond its basic unprotectable genre: the style of the pieces in both games were nearly indistinguishable in both their look and the way they moved, rotated, fell, and behaved; both games’ screen borders were composed of identical bricks (same texture and bright colors); the dimensions of both of the games’ playing fields were the same; both had a preview of the next piece about to fall; both games’ pieces changed to the exact same color when they were locked with accumulated pieces; and both games’ playing fields’ automatically filled in the exact same way when the game was over. The court clarified that: “[n]one of these elements are part of the idea (or the rules or the functionality) of Tetris, but rather are means of expressing those ideas.” Because Xio had chosen to copy Tetris’s specific and deliberate design choices despite the “almost unlimited number of variations that were available to it,” so much so that the two games were nearly identical and all but indistinguishable to the common observer, the court found Xio liable for copyright infringement.

Takeaway

Although most developers are able to limit their copying to a specific genre’s mechanics and rules while contributing their own creative expressive elements, the issue of copyright infringement may arise if there are too many similarities between the way the overall idea of the game is expressed, especially if there were easily other ways to express the same idea. Remember, while copyright law may seem to protect only the narrow spectrum of unique expression, there is a limit as to how far a game developer may go when creating a new game that is inspired by a previously released game. Essentially, if you create a game by mimicking other games within the same genre but put your own spin on it, like adding creative visual elements and developing strong, unique characters that set the game apart, you may be copying the gameplay and idea, but you wouldn’t be liable for copyright infringement because it would be considered your own expression of that genre.

Author: Jennifer Kleinman and Daniel Koburger

First Published: 07/08/2020

Firm & News

The Fight for Fair Play: Sony Faces EU Consumer-Led Antitrust Lawsuit

Dutch consumers are suing Sony over the argument that Sony controls about 80% of the console market in the Netherlands and abuses its dominant market position.

Ultimately, the Dutch consumer group Stichting Massaschade & Consument, representing 1.7 million Dutch Playstation users, makes the same claim that the regulators are making against dominant tech platforms like Apple and Google, who wield market abusive, and likely illegal, powers over digital ecosystems.

Uniquely here, the case represents the consumer’s fight for fairness following the February launch of the “Fair PlayStation” campaign that criticizes the “Sony tax” where digital games are allegedly priced up to 47% higher despite lower distribution costs. The lawsuits, if successful, could not only force Sony to compensate affected users, it would also open Sony to third party game stores and prove a vital cornerstone in the developer’s fight for market access against big corporations.

What Happened?
Sony’s digital ecosystem is closed by design: PlayStation users can only purchase games and add-ons through the official PlayStation Store, while third-party resellers like Amazon or Green Man Gaming are completely excluded. This gives Sony complete control over pricing and distribution, along with a standard 30% commission on all digital sales.

This setup results in limited consumer choice and higher prices - commonly referred to as the “Sony Tax.” While physical PlayStation games remain available through retailers with competitive pricing, the same is not true for digital content. Sony sells two PS5 models: a Standard Edition with a disc drive and a Digital Edition without one. Owners of the Digital Edition are fully locked into Sony’s digital-only ecosystem. Additionally, since 2019, Sony has banned third-party sales of digital game codes, preventing developers from offering their games directly or through alternative platforms.

What This Means for Game Developers?
Sony’s digital policies tightly restrict how developers can price, promote, and distribute their games. Independent discounts, regional pricing, and time-limited promotions all require Sony’s approval, while selling digital codes through developers’ own websites or third-party platforms is prohibited - practices common on PC and Xbox.

This creates a single point of access - the PlayStation store - where visibility and revenue opportunities are tightly controlled. Placement depends entirely on Sony’s algorithm and editorial discretion - a barrier for many indie and mid-sized studios. With no option to drive external traffic or leverage affiliate marketing, discoverability becomes yet another gate that only Sony can open.

This lack of alternative sales channels leaves developers fully exposed to Sony’s standard 30% commission, with no way to offset it through direct sales or discounted offers, limiting both pricing flexibility and growth potential compared to other platforms.

Is the “Walled Garden” and “Sony Tax” illegal?
Under EU competition law, companies with a dominant market position are strictly prohibited from abusing that power to the detriment of consumers or competition. The key legal provision is Article 102 of the Treaty on the Functioning of the European Union (TFEU), which bans abusive practices such as excessive pricing and unfair trading conditions. Dutch law reflects this through Article 24 of the Dutch Competition Act, which mirrors the principles of Article 102.

Legally, the Dutch Consumer Foundation argues that Sony controls about 80% of the console market in the Netherlands and has abused this dominant position by restricting developers and resellers from offering digital PlayStation games outside the PlayStation Store. They claim this has created an artificially closed market that inflates prices and harms consumer choice. According to their research, digital PlayStation games can cost up to 47% more than physical copies.

If upheld in court, this pricing model could be considered excessive pricing under Article 102 TFEU - a form of exploitative abuse - particularly if Sony’s digital prices are found to significantly exceed what would be expected in a competitive market.

Beyond Article 102, the EU’s Digital Markets Act (DMA), which came into effect in 2023, introduces new rules targeting large online platforms classified as “gatekeepers,” including Sony’s PlayStation Store. The DMA mandates fair and transparent pricing, prohibits self-preferential treatment, and aims to foster cross-border competition within the EU’s digital single market. This legislation enhances regulatory oversight and restricts the kind of closed ecosystem Sony has built around digital game sales.

What’s Next?
The first court hearing is expected later this year, beginning with the Dutch court assessing whether it has jurisdiction and whether the consumer foundation can represent the class. Cases like this can take several years to resolve, especially if appeals follow an initial ruling.

If the court ultimately grants the claims, the foundation expects that Sony could be required not only to open its platform to third-party digital game sellers, but also to compensate millions of Dutch consumers for alleged overcharges. A ruling in favor of the plaintiffs could also set a legal precedent for similar lawsuits in other EU countries, putting further pressure on Sony - and possibly other platform operators - to reform their digital distribution models.

While Sony is battling similar cases also in England and Portugal, this case arrives at a moment of mounting political will to rein in digital gatekeepers. With laws like the EU’s Digital Markets Act (DMA) already targeting tech giants like Apple and Google, Sony may now find itself drawn into a broader regulatory push for platform accountability and consumer and game developer choice. Whether driven by regulators or consumers, the message is becoming clear: the era of closed ecosystems is under challenge.

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