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Back in early college I wanted to toy with my location based app development skills. I created a Windows Phone game where Pokemon were scattered across a real world map in your area and you could walk/drive around and if you got close enough to said Pokemon you could catch it. Now of course I couldn't publish or do anything with the app as I didn't have the rights to Pokemon.

A few years later Google released essentially the same thing (better written of course) and it was a big hit. Now of course Pokemon Go was just released and is a worldwide sensation already, again doing essentially the same thing just much better.

Now again I know I have no rights to Pokemon but I was wondering, if I had tried and succeeded to patent something more general for my game back then such as "Geolocation based monster catching app for the phone using real world maps" insert lawyer talk, would I have some sort of IP case/royalties from these new games? Or would their specificity of owning Pokemon override my idea.

  • While I'm not an intellectual property lawyer, and so have no place answering this question, I'd remind you that intellectual property law is some of the most complex and convoluted law there is, and so the question is really one of "could you have gotten a patent then?" (quite possibly) and "can you afford to defend it now?" (most certainly not). Regardless of your possibly very real claim to intellectual property protection, the fact that you're conveniently going up against two companies valued at tens to hundreds of billions of dollars gives you basically no chance of winning such a case. – TheEnvironmentalist Nov 7 '16 at 7:36
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Intellectual Property is a nebulous term that covers some rights which are not physical property. However, these rights are distinct and have different mechanisms of operation.

Unarguably part of these IP rights are copyright, patents and brands. As you figured out, the Pokemon brand simply isn't yours. Patents must be filed, and you would have known if you had one. You can't file one by accident.

This just leaves copyright. You can't copy a general idea. You can certainly copyright the computer code, but we know that Pokemon Go is a spin-off from Google via the game Ingress, and almost certainly does not incorporate your Pokemon game. Being similar is not a violation of copyright; copyright only covers actual derived works.

Hence, you cannot enforce any of these 3 IP rights. It's not your brand, there's no patent violated, and none of your source code is copied.

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With patents two things that you need to be sure of:

  • Freedom to practice : does anyone else have a patent on the area?

  • Zone of protection : how big a slice of the IP area can you claim?

Provided there was no prior art that limited your freedom to practice, you could have made your zone of protection as wide as possible. For example, not limiting the captures to Pokemon. For example, not limiting the patent to mobile phones only (iPads? other tablets?).

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