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Last year, Nintendo initiated a patent lawsuit against Palworld developer Pocketpair, and in the months since the Pokemon publisher has seemingly decided to double down on moustache-twirling IP law villainy at every opportunity. The latest development in the Pocketpair proceedings might be Nintendo’s worst look yet, because the company has reportedly decided that modders’ ideas don’t count. Cool!

Thanks to the efforts of a Tokyo contributor who was able to review the case file for the ongoing Pocketpair lawsuit, videogame patent law site Games Fray (which broke last week’s Nintendo patent story) reports that part of Pocketpair’s defense against Nintendo’s lawsuit aims to invalidate Nintendo’s patent claims based on the existence of prior art in mods.

(Image credit: Pocketpair / Toasted Shoes / The Pokemon Company)

As IP attorney Kirk Sigmon told PC Gamer last September, demonstrable prior art—meaning preexisting work resembling the invention described in a patent’s claims—is bad news for patent holders, because it means they shouldn’t have been granted the patent in the first place. Sigmon said that courts in Japan have a strong history of siding with patent lawsuit defendants who could present examples of prior art.

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By presenting mods like Pocket Souls for Dark Souls 3, which allowed the player to capture enemies in a method resembling Nintendo’s JP 2023-092953 patent claims, Pocketpair is hoping to demonstrate that Nintendo was granted a patent on ideas that had already been deployed in game design. If it’s successful, it could render Nintendo’s patent invalid.

According to Games Fray, however, Nintendo has argued in two separate pleadings that mods simply don’t qualify as prior art, because they aren’t real games.

(Image credit: Nintendo)

To evaluate this, let’s consider the conditions for patentability in Japanese patent law, as translated by Japan’s Ministry of Justice:

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• (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; or
  • (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.

Now, I’m not an expert, but I don’t see anything in there that says “Nintendo gets a pass if it doesn’t think creators of prior art deserve to have ideas.”

It’s an argument that doesn’t just insult the creativity of modders—it imperils them. If Nintendo’s rationale was accepted by the Tokyo District Court, it could create a world in which a developer of a “real” game might patent gameplay mechanics inspired by a mod and then hit that mod’s creator with a cease and desist for infringing on their own ideas.

Nintendo has already demonstrated it’s perfectly happy to hammer modders with legal action, having previously issued DMCA notices that drove Garry’s Mod to remove Nintendo-related items from Steam Workshop and forced Breath of Wild multiplayer modders to shut down development.

In a just world—which, considering Nintendo’s legal oeuvre, we probably shouldn’t take as a given—it’s a ploy that wouldn’t stand. We’ll have to wait and see.

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