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