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As first noted by Games Fray last week, Nintendo and The Pokémon Company were granted a US patent earlier this month involving summoning characters and making them battle. Headlines popped up with similarly vague language as concern spread on social media: That’s a thing in tons of games! Can they do that? Is that even allowed?
Well, no, because that’s not exactly what they patented. And what they did patent might not stand up to any hypothetical challenges in court.
The patent in question, US Patent No. 12,403,397, was filed in March 2023. It does involve summoning and battle mechanics, but it’s more specific than that: The claims describe a system that sounds a lot like auto-battling from Pokémon Scarlet and Violet, in which the player can send a pokémon into the overworld to automatically fight wild pokémon rather than initiating a typical turn-based battle that the player controls.
The patent outlines the process by which, after the player has summoned a “sub character,” a game’s software would determine whether to initiate a player-controlled battle, an automatic battle with the sub character, or automatic movement by that same sub character. In general Pokémon terms: Say you’re out in the world and you summon your pokémon by throwing its ball. Did you throw it at a wild pokémon? That’s a regular battle. Did you throw it near a wild pokémon? Your pokémon will come out of its ball and start an auto battle. Did you throw it far away from wild pokémon? Your pokémon will come out of its ball and walk around.
It’s not a patent solely on summoning characters to fight enemies, or on automatically resolving battles — it’s the whole web of options as described in the claim. But that by itself doesn’t mean the patent isn’t concerning for other game developers. Whether this particular patent could unreasonably restrict the mechanics of other games is in part determined by any given court’s interpretation of the patent and the law.
Charles Duan, an assistant professor at American University Washington College of Law whose research has included software copyrights and patent eligibility, told The Verge over email that there are two main ways one could potentially invalidate this specific patent: by anticipation or obviousness, and by subject matter eligibility.
To illustrate the first point, Duan said the process outlined in Nintendo and The Pokémon Company’s patent reminded him of StarCraft, in which the player can give units an “attack-move” order to automatically battle enemies or, alternatively, micromanage a battle themself. “If an old game like Starcraft, which obviously predates the 2022 earliest filing date of this patent, had all the features that this patent claims, then that invalidates the patent under the patent law rules of ‘anticipation’ or ‘obviousness,’” Duan said.
However, he added, the arguments in cases like these can “get really technical,” and it tends to be easier to argue that a patent is invalid on the basis of subject matter eligibility instead.
Subject matter eligibility “focuses on whether the patent’s claims are (1) directed to an abstract idea and (2) contain no inventive step beyond that idea,” Duan explained. In short, you can patent a specific process that’s unique, but you can’t patent an abstract idea.
“As for (1), basic human business practices and organizations are typically treated as abstract ideas,” Duan added. “Here, the various types of automatic and directed combat sound a lot like ordinary military hierarchies: Generals tell soldiers where to go, and depending on orders the soldiers might follow orders to fight enemies near them, move toward enemies on their own initiative, or receive a destination and automatically fight enemies along the way—all the key parts of [the patent’s claims]. So there would be a pretty good argument that the patent claims are directed to an abstract idea.”
The concerns about this patent aren’t totally unfounded: Nintendo is definitely willing to use patents to defend its turf in court. In September 2024, Nintendo and The Pokémon Company filed a patent infringement lawsuit in Japan against Palworld developer Pocketpair. That lawsuit, which is ongoing, involves a few different Japanese patents filed in 2024 related to throwing a ball at characters in a field, as well as riding characters. US Patent No. 12,403,397, by comparison, was filed in the US in March 2023, before Pocketpair had shown any gameplay footage from Palworld. (Palworld was released in early access in January 2024.) Nintendo of America is also behind an infamous patent filed in 2000 on the “sanity system” from Eternal Darkness: Sanity’s Requiem, in which the player character’s decreasing “sanity” level can result in trippy visual effects and gameplay-related consequences meant to evoke a sort of mental breakdown. That patent expired in 2021.
Duan noted that it’s hard to predict how a court will read and interpret a patent, so we can’t say for certain just from reading it whether it’ll stand up to any hypothetical challenges in court. But it does seem like this patent might not be quite as threatening to other game developers and publishers as it sounds in a headline-length description.
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