Pokémon Co. Flails Responding To PocketPair’s Examples Of Prior Art In Patent Lawsuit

The lawsuit between Palworld maker PocketPair and The Pokemon Co. (Nintendo included) is still ongoing. As the litigation progresses, PocketPair has been patching out some of the very content and gameplay mechanics that the Pokemon people complained about, which is unfortunate. The patents we're talking about are quite broad in the realm of video games and, as I have been pointing out since early on, suffer under the existence of plenty of prior art.

Well, the prior art I mentioned is not the same as the prior art PocketPair brought up in its defense, but its there nonetheless. Going all the way back to April, the company has been pointing out that the things The Pokemon Co. got patents for have existed in gaming long before Nintendo claims to have invented them.

Defending itself against a patent about capture balls (Poke Balls) to capture/fight, Pocketpair points to Rune Factory 5, Titanfall 2, and Pikmin 3 as examples of games where players can release captured monsters or a capture item (like a ball)" in any direction. Meanwhile, Octopath Traveller, Final Fantasy 14 and a Dark Souls 3 mod show players the chance of a likely capture when trying to tame a beast.

Pocketpair also apparently used Far Cry 5 and Tomb Raider as games that proved there can be different types of throwable objects," according to the report. While games such as The Legend of Zelda, Monster Hunter 4, Path of Exile, and Dragon Quest Builders, as well as mods for Minecraft and Fallout 4, were also namedropped.

That seems like quite a trove of examples to point the court to. Unless PocketPair is completely fabricating the similarity of what appears in those games and what is in these patents, it's hard to imagine The Pokemon Co. coming out on top here. Given the company's reputation, and Nintendo's especially, I'm not particularly in the mood to give them the benefit of the doubt.

Especially when the companies also responded recently specifically to the examples that were game mods by saying, Nuh uh! You can't use mods as examples of prior art! It's not fair!"

One of the examples highlighted by Pocketpair was the Dark Souls 3 mod Pocket Souls, a Pokemon-like mod forFromSoftwares 2016 action RPG. However,Nintendo argued that mods don't count as prior artsince they can't stand alone without their base games, butspeaking to Grokludoin a video interview (below), US patent law expert and Banner Witcoff IP litigation and patent prosecution partner Kirk Sigmon argues that Nintendo is so wrong, it hurts."

Adding that I don't know why they made that argument," Sigmon notes that there's some nuance in Japanese law that might dictate where they're coming from," but generally speaking, when we're talking about what we call prior art for the world of patents, it doesn't have to be perfect. In fact, it doesn't actually have to be functional, right? There have been plenty of instances in which prior art has been used that is not even a computer program in the first place."

Sigmon was also featured in our post about how the USPTO recently abdicated its responsibilities when examining two new patents that were granted to Nintendo. He's fascinating and the embed for the full interview is below.

The idea that mods can't count as prior art is very, very silly. And while Sigmon does note that there may be specifics in Japanese patent law that might be powering this claim from The Pokemon Co., he has practiced patent law in Japan, so he knows what he's talking about.

There may be some nuance there in Japanese law that I'm not aware of. I've done quite a bit of Japanese patent law myself, but you know, there may be some nuance there," Sigmon acknowledges. But in general I think that that argument is a loser. It's one that is fixated too highly on form over function, which is just a bad idea, because where do we end that dispute, right? There are plenty of Unreal Engine 5 games, are those mods too, just because they're running on a singular engine? It gets into this weird dispute that no one knows what the hell's going on anymore. So, from my perspective, it's just a loser argument from Nintendo. I think that they're trying to throw a Hail Mary because there's so much out there."

It's almost as though The Pokemon Co.'s lawyers are confusing copyright and patent law, honestly. This sounds so close to the more generally correct claim that mods don't get copyright protection because they are a derivative work. But that isn't how patents generally work at all.

I, too, will acknowledge that I'm no expert in the realm of Japanese patent law, but given the preponderance of prior art examples, and this flailing about mods from The Pokemon Co., it's starting to look like this lawsuit is a stinker and should be dropped.