Last year, Nintendo took a significant step by initiating a patent lawsuit against Pocketpair, the developer behind the game Palworld. In the months that followed, the gaming giant has seemingly intensified its focus on intellectual property (IP) enforcement, raising eyebrows across the industry. The latest twist in this ongoing saga may be one of Nintendo’s more controversial moves, as reports indicate that the company has dismissed the contributions of modders in its legal arguments.
Modding and Patent Law: A Complex Intersection
Thanks to the diligent efforts of a contributor based in Tokyo, details surrounding the Pocketpair lawsuit have come to light. The videogame patent law site Games Fray recently reported that Pocketpair’s defense strategy hinges on challenging Nintendo’s patent claims by referencing prior art found in mods. This approach, if successful, could undermine Nintendo’s assertions and potentially invalidate its patent.
IP attorney Kirk Sigmon elaborated on this concept last September, explaining that demonstrable prior art—essentially, existing work that closely resembles the claims made in a patent—can be detrimental to patent holders. In Japan, courts have a history of favoring defendants who can present such evidence. In the context of the JP 2023-092953 patent claims, Pocketpair aims to show that Nintendo’s patents cover ideas already explored in game design.
However, Nintendo has countered this argument in two separate legal filings, asserting that mods do not qualify as prior art because they do not constitute “real games.” This stance raises important questions about the nature of creativity and innovation within the gaming community.
The Legal Landscape of Patentability in Japan
To understand the implications of Nintendo’s argument, it’s essential to consider the criteria for patentability under Japanese law, as outlined by the Ministry of Justice:
- (1) A person that invents an invention with industrial applicability may obtain a patent for that invention, unless the invention is as follows:
- (i) an invention that is public knowledge within Japan or in a foreign country prior to the filing of the patent application;
- (ii) an invention that is publicly known to be worked within Japan or in a foreign country prior to the filing of the patent application;
- (iii) an invention that is described in a distributed publication or made available for public use over telecommunications lines within Japan or in a foreign country prior to the filing of the patent application.
- (2) A person may not obtain a patent if prior to the filing of the patent application, a person of ordinary skill in the art of the invention would have easily been able to make that invention based on an invention prescribed in one of the items of the preceding paragraph, notwithstanding the preceding paragraph.
While not an expert, one might argue that there is no provision allowing Nintendo to disregard the contributions of modders simply because it deems them unworthy of recognition. This line of reasoning not only undermines the creativity of modders but also poses a significant threat to their work. Should Nintendo’s rationale gain traction in the Tokyo District Court, it could pave the way for a scenario where legitimate game developers might patent gameplay mechanics inspired by mods, subsequently targeting the original creators with cease and desist orders.
Nintendo has already established a pattern of legal action against modders, having previously issued DMCA notices that led to the removal of Nintendo-related content from platforms like Steam Workshop and forced the shutdown of multiplayer modding projects for titles such as Breath of the Wild. In a fairer world—one that seems uncertain given Nintendo’s legal history—this argument would likely falter. The outcome of this case remains to be seen, but it undoubtedly highlights the intricate relationship between innovation, creativity, and intellectual property in the gaming industry.
