Anita Hill
Nintendo has finally come for Palworld, the video game that even before its release was being called “Pokémon with guns.”[1] On September 18, Nintendo and the Pokémon Company filed a suit in Tokyo District Court alleging infringement of multiple patents.[2] Pocketpair, the maker of Palworld, said in a response that they “are unaware of the specific patents [they] are accused of infringing upon, and…have not been notified of such details.”[3]
Palworld was released in January 2024 to instant success, perhaps thanks to the memes comparing it to the Pokémon franchise.[4] The game is an open world survival game where players can catch and train animal-like creatures called Pals, as well as boss battle against powerful Pal trainers.[5] Many of the gameplay mechanics and even Pal designs will sound familiar to veterans of the Pokémon franchise.
Nintendo has previously taken an aggressive approach to protecting its IP and has been known to sue its fans, as this blog has previously covered.[6] Nintendo has repeatedly targeted emulation, which allows older games to be unofficially run on newer gaming platforms.[7] In 2013, Nintendo threatened—but ultimately backed off from—asserting intellectual property claims over the content of “Let’s Play” videos on YouTube, where content creators play through video games, meaning that all monetization would be redirected from the content creator to Nintendo.[8] In 2016, Nintendo issued DMCA takedown notices to the makers of over 500 fan games: unofficial projects based on existing games.[9] And this isn’t a recent phenomenon. All the way back in 1989, Nintendo sued Blockbuster for making instruction manuals for Nintendo games.[10] These are mostly open-and-shut cases where fans are explicitly using Nintendo’s IP. However, it is unusual for a large video game company to target its fanbase so aggressively, since most companies want to foster a positive relationship with their consumers.
Most recently, the Pokémon Company won a large case on copyright infringement grounds in China against several Chinese companies who developed Pocket Monster Reissue, which seems to have directly plagiarized both characters and Pokémon designs.[11] Although this case seems similar to the Palworld case, the fact that the latter is based on patent infringement claims rather than copyright makes it of significant interest.
For one, despite the close resemblance of many of Palworld’s Pals to existing Pokémon, it seems that Nintendo may not have been able to find a way forward on a copyright infringement claim, which essentially would be based on the similarity of the visual appearance between the games.
Despite Nintendo’s history of litigiousness, it has rarely used patent infringement to protect its IP.[12] This is more notable given the quantity of patents held by Nintendo, as well as the significance of those patents. For example, Nintendo owns a patent for a game controller joystick where “the angle and pressure placed on [the] joystick [relates] to the degree and speed of movement of an object in space,” a mechanic that is seemingly replicated on many other modern game controllers using joysticks.[13]
Additionally, it has been speculated that the Palworld suit is based on game mechanic patents.[14] Although game developers pursue game mechanic patents less frequently than patents on hardware such as controllers and cartridges, Nintendo also appears to hold a large number of game mechanic patents.[15]
Nintendo pursued a similar lawsuit against developer Colopl in 2017 over patent infringements including, among others, a mechanic where “when you have an isometric view, and then a character is covered by a tree, for example, the character can still be seen as a shadow,” with one analyst stating “[t]his is in like every single isometric game.”[16] In this instance, the patent at issue seems as though it may be for catching creatures with a ball thrown by the player, a mechanic that is ubiquitous in the Pokémon franchise and is also found in Palworld.[17]
Game mechanic patents are controversial in the video game industry, with concerns that they could stifle innovation in an industry where game mechanics frequently overlap due to genre tropes and satire.[18] On the other hand, Palworld’s nickname of ‘Pokémon with guns’ indicates that this is not the type of original creative work that we should be worried about protecting, and rather that this is a legitimate suit by Nintendo against a competitor who has tried to profit off of the former’s generations of brand recognition. Either way, the ripple effects of this case are unlikely to be felt for months if not years as the case makes its way through the Japanese court system.
[1] Zachary Small, Mocked as ‘Pokémon with Guns,’ Palworld Becomes an Instant Hit, New York Times (Jan. 22, 2024), https://www.nytimes.com/2024/01/22/arts/palworld-pokemon-steam-release.html [https://web.archive.org/web/20241121185303/https://www.nytimes.com/2024/01/22/arts/palworld-pokemon-steam-release.html].
[2] Filing Lawsuit for Infringement of Patent Rights Against Pocketpair, Inc., Nintendo (Sep. 19, 2024), https://www.nintendo.co.jp/corporate/release/en/2024/240919.html [https://perma.cc/QE7S-E24L] [https://web.archive.org/web/20241121185303/https://www.nytimes.com/2024/01/22/arts/palworld-pokemon-steam-release.html].
[3] Regarding the Lawsuit, Pocketpair (Sep. 19, 2024) https://www.pocketpair.jp/news/news18 [https://perma.cc/MR5P-L6HE] [https://web.archive.org/web/20241121190101/https://www.pocketpair.jp/news/20240919].
[4] Small, supra note 1.
[5] Kelsey Raynor, Palworld Is More than Just 'Pokemon with Guns', but Not Much More, VG24 (Jan. 19, 2024), https://www.vg247.com/palworld-review-early-access [https://perma.cc/JF83-Z4PJ][ https://web.archive.org/web/20241121190303/https://www.vg247.com/palworld-review-early-access].
[6] Brian Uhler, Nintendo Continues To Battle an eSports Community Over Its Use of Their Video Game, Colum. J.L. & Arts (Jan. 29, 2023).
[7] Khee Hoon Chan, A Snapshot of Nintendo’s Convoluted Legal History, TheGamer (Dec. 14, 2021), https://www.thegamer.com/a-snapshot-of-nintendos-convoluted-legal-history/ [https://perma.cc/8DN6-KKCJ ] [https://web.archive.org/web/20241121234033/https://www.thegamer.com/a-snapshot-of-nintendos-convoluted-legal-history/].
[8] Ivan O. Taylor Jr., Video Games, Fair Use and the Internet: The Plight of the Let's Play, 2015 U. Ill. J.L. Tech. & Pol'y 247, 248 (Spring 2015).
[9] Chan, supra note 7.
[10] Taylor, supra note 8, at 250.
[11] Amber V, The Pokémon Company Wins $15 Million Copyright Infringement Lawsuit Against China-Based Game Developers, Automaton (Sep. 17, 2024), https://automaton-media.com/en/news/the-pokemon-company-wins-15-million-copyright-infringement-lawsuit-against-china-based-game-developers/ [https://perma.cc/J3MY-9ZC6] [https://web.archive.org/web/20241121234944/https://automaton-media.com/en/news/the-pokemon-company-wins-15-million-copyright-infringement-lawsuit-against-china-based-game-developers/].
[12] Casey O’Donnell, Patented Creativity: Reflecting on Video Game Patents, in Video Games and Creativity 247 (Garo P. Green and James C. Kaufman eds., 2015).
[13] Id.
[14] Amber V, What’s the “Killer Patent” Nintendo Is Suing Palworld for? Japanese Patent Attorney Offers In-Depth Analysis, Automaton (Sep. 20, 2024), https://automaton-media.com/en/news/whats-the-killer-patent-nintendo-is-suing-palworld-for-japanese-patent-attorney-offers-in-depth-analysis/ [https://perma.cc/4ETW-ZJ7G] [https://web.archive.org/web/20241121235626/https://automaton-media.com/en/news/whats-the-killer-patent-nintendo-is-suing-palworld-for-japanese-patent-attorney-offers-in-depth-analysis/]; Andrew Velzen, Nintendo’s Patents Were Designed To Take on Palworld, GamesIndustry.biz (Sep. 27, 2024), https://www.gamesindustry.biz/nintendos-patents-were-designed-to-take-on-palworld [https://perma.cc/4XLX-W9GY ] [https://web.archive.org/web/20241121235817/https://www.gamesindustry.biz/nintendos-patents-were-designed-to-take-on-palworld].
[15] O’Donnell, supra note 12; Kaan Serin, Amid the Palworld Dispute, One Analyst Says Nintendo Only Strikes when It Wants To Because It "Could Have Sued Half the Gaming Industry Back in 2017," Gamesradar+ (Sep. 21, 2024), https://www.gamesradar.com/games/survival/amid-the-palworld-dispute-one-analyst-says-nintendo-only-strikes-when-it-wants-to-because-it-could-have-sued-half-the-gaming-industry-back-in-2017/ [https://perma.cc/5N5S-TDCS] [https://web.archive.org/web/20241122000137/https://www.gamesradar.com/games/survival/amid-the-palworld-dispute-one-analyst-says-nintendo-only-strikes-when-it-wants-to-because-it-could-have-sued-half-the-gaming-industry-back-in-2017/].
[16] Serin, supra note 15.
[17] Amber V, supra note 14; Velzen, supra note 14.
[18] O’Donnell, supra note 12.