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I have a question concering the public reveal of new patents filed by Nintendo Co., Ltd., and how such patents are legal given how general the concepts are, and how this would effect development of games, both Indie and AAA.

I am particularly worried as I am a game developer myself (well, aspiring, I do not have anything published yet), and therefore this could potentially impact what I am allowed to publish.

From what I understand, a patent must:

  • The invention must be statutory (subject matter eligible)
  • The invention must be new
  • The invention must be useful
  • The invention must be non-obvious

The rule about having to be new is one of the largest points in my confusion about these patents:

  • the invention was known to the public before the applicant filed for patent protection;
  • the invention was described in a printed publication before the applicant filed for patent protection;
  • or the invention was described in a published patent application or issued patent that was filed before the applicant filed for patent protection.

So, the new patents include several things that I would argue are too general or too stifiling to be able to be enforcable, which concerns me. For instance:

The First Problematic Patent:

“the movement of movable dynamic objects placed in the virtual space is controlled by physics calculations, and the movement of the player’s character is controlled by user input. When the player’s character and a dynamic object come in contact in the downward direction relative to the character (in other words, when the character is on top of an object), the movement of the dynamic object is added to the movement of the player’s character.” or in the orginal text「本実施形態のゲームでは、仮想空間に配置された移動可能な動的オブジェクトを物理演算に基づいて移動制御させ、操作入力に基づいてプレイヤキャラクタを移動制御させ、プレイヤキャラクタの下方向においてプレイヤキャラクタと動的オブジェクトとが接触している場合に、当該下方向に接触している動的オブジェクトの移動をプレイヤキャラクタの移動に加える」the patent itself can be found at https://www.j-platpat.inpit.go.jp/c1800/PU/JP-2023-103273/6B1E7E15670E730C5DEAF877AF466F706D91B47CAD6DC015008FDC07DA623400/11/ja

This is essentially saying that they patented the idea that when a character is on top of a moving object, they would move with it. This is concerning to me as this is a mechanic present in a very large amount of games, due to the fact that it is something observable in reality itself.

It is not new or innovative, it is obvious (due to presence in observable reality), and it was openly known to the public, and used in many products not made by Nintendo Co., Ltd., long before the passing of the patent itself.

Therefore, it is not just too general (in my opinion) and commonly used (as in, it has many predecessors which make use of the same mechanic) to act as a valid patent, it is also, essentially, an attempt to patent aspects of real physics.

A Second Problematic Patent:

Another thing they patented was a rule in the code that states that, when you have an ability to move an object in space, you are not able to move an object your are standing on, or an object that is attached to what you are standing on. I cannot find a good translation of it, so here is the Japanese text:

「本実施形態のゲームでは、仮想空間に配置された移動可能な動的オブジェクトを物理演算に基づいて移動制御させ、操作入力に基づいて、指定された動的オブジェクトを移動させる第1の操作と、他の動的オブジェクトに結合させて組立品オブジェクトを形成させる第2の操作とを含むオブジェクト操作アクションをプレイヤキャラクタに行わせ、オブジェクト操作アクションによって指定された動的オブジェクトが含まれる組立品オブジェクトが、プレイヤキャラクタが乗っている動的オブジェクトを含む場合に、オブジェクト操作アクションによる動的オブジェクトの移動をさせない。」

This is essentially saying that, in a virtual space, when a second dynamic object is connected to another dynamic object that the player is standing upon, it would be treated as part of said object, and therefore not be able to be moved via an object manipulation action. While not as limiting as the first one I mentioned, I still feel it ultimately is too general in concept.

This is another aspect present in most games with such an object movement mechanic before the filing of the patent, which is instituted in order to prevent one from breaking the intended manner of playing the product by simply standing on something and using it to fly by picking it up. This is also something that, ultimately, rooted in real world physics. Which can be proven via how one cannot fly via pulling on their own bootstraps, or push a car they are in, as they are part of the system.

Thus this patent ultimately comes up with the same problems of having already been implented in many games before itself (and is therefore not an innovative technology), and is rooted in observable aspects of our own real world.

Conclusion: So, how exactly was this legal despite how overly general it was (ergo possessing a lack of specificity and uniqueness to any satisfying degree), and in how it is already a common part of many other software products throughout the decades (lacking in the innovation a patent necessarily requires), and in how it is simple taking an aspect of the real world and applying it into in-game physics (a fortiori, it displays a lack of innovation in the patent, and is not obvious)?

Furthermore, how safe would it be to be able to still use such mechanics despite these patents, id est, how enforcable are these patents on developers both independent and corporate, especially in cases of international (i.e, not in Japan) cases of potential breaches to patent rights? Is it likely to inure to the benefit of Nintendo Co., Ltd., despite these apparant issues in their patents?

This also leads to another question, how exactly would this work in regards to games that have already used these mechanics before the filing of the patent? Or for ones that were in development during the release of the patent which made use of ideas patented in them?

I apologize for the long post, but this is something that deeply concerns me regarding how it effects me, and in how it could potentially stifle the medium as a whole for decades.

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    Have the patents been filed only in Japan?
    – Greendrake
    Aug 16, 2023 at 3:59
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    It is worth observing that when patent infringement lawsuits are actually brought, about half of all patents litigated are held to be invalid in the litigation, despite the prescreening of patents for validity by the patent office, and the presumption of their validity that attaches to the issuance of a patent. There are lots of bad patents out there.
    – ohwilleke
    Aug 16, 2023 at 4:52
  • You might misunderstand what is actually patented or how they solve the problem that they have. Also, the translation from the Japanese you offer is horribly bad. The section you quote is the problem statement, not their solution, which is what actually is patentable.
    – Trish
    Aug 16, 2023 at 23:09
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    @Trish No need to insult my attempts at translation (unless you meant the quote for the first one, which I found elsewhere), rather uncalled for and immature. But that would make sense. I will try looking into the other parts more. Thank you. Aug 17, 2023 at 16:15
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    @Trish seems to be saying that the patents are not protecting "the idea that when a character is on top of a moving object, they would move with it" (which makes sense, since ideas aren't patentable), but rather a specific mechanism for achieving that. Similarly, a patent for a corkscrew does not protect the idea of inserting a helical wire into a cork to pull it out of a bottle but rather a specific invention that inserts the wire and/or pulls out the cork in some novel way.
    – phoog
    Aug 20, 2023 at 14:02

1 Answer 1

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Something you might already know - patents are territorial, they just cover activities within the jurisdiction of the patent grant. Those activities are making, selling, offering for sale, using and importing.

Patents apply to big companies, little companies and individuals. A small-time concern with little market share might get overlooked.

Patent validity, particularly of software related patents, has been a big issue and is still a moving target in the US. They are somewhat narrowly allowed by subject matter restrictions and claiming conventions in many places but once granted are not being shot down in court at as high a rate as in the US.

You already understand that patent coverage is defined by the claims, not the entire text and drawings. Granted claims are often narrower than the originally filed claims.

Speaking of granted claims - the first document is not a granted patent. First clue is the suffix A, the other is - “[Kind of official gazette] Published unexamined patent application (A)”. There may be a granted patent but this isn’t one.

According to the Global Dossier it has not received its first office action, has a priority filing date of 2023-04-21 and is not yet filed anywhere (any non-obscure place) else.

They have one year from the earliest priority date to file elsewhere under the Paris Convention.

screen shot of Global Dossier record

Stifling competition for 17 years or so is exactly what patents are for. In theory, it is the incentive for innovating and making the details of the innovation public (for use after expiration or right away if the application is ultimately rejected or narrowed).

If a patent owner went after a game that preceded their filing they would be confirming that accused game as prior art to their patent. If not invalidated, it would at least have no deterrent teeth.

Note that SE has the site Ask Patents. This question is on topic in both Law and Ask Patents. A very frequent response to concerns at Ask Patents about an overly broad patent is that it is not a patent at all but the publication of an application as on this case.

Ask Patents was established by SE in cooperation with google patents and the USPTO with the expressed purpose of surfacing prior art against US software patent applications. There were a couple of notable successes in getting claims narrowed or eliminated but prior art requests are rare now. You could take the tour and look at the canned format for such a question. Most patent offices have some process of objecting to applications or at least bringing art to the examiner’s attention.

During examination “known to the public” isn’t really cited by examiners. You need actual documents with verifiable dates before the earliest priority date to put in front of the examiner by whatever process the country provides. You could ask other for help in doing this at Ask Patents.

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