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Recent patent grants to Nintendo, particularly concerning video game mechanics, have ignited significant debate, with one intellectual property (IP) attorney labeling them a profound flaw in the American patent system. These contentious patents, covering aspects such as character summoning and riding systems, have drawn sharp criticism for their broad scope and the seemingly minimal scrutiny they received from the United States Patent and Trademark Office (USPTO).
Controversial Patent Approvals Under Fire
In a series of recent victories, Nintendo secured two notable US patents that have become focal points of the controversy. US patent 12,409,387 pertains to riding and flying mechanics, echoing systems that sparked legal challenges, such as the ongoing dispute with Palworld. However, it is US patent 12,403,397, granted last week, that has raised even greater alarm. This patent covers methods for summoning and battling characters, a core mechanic widely seen in numerous games, including Nintendo’s own Pokémon titles like Scarlet and Violet’s “Let’s Go!” feature.
According to Kirk Sigmon, an experienced video game patent lawyer, these approvals are not merely debatable legal interpretations but rather a damning indictment of US patent law. Sigmon, while clarifying that his views are his own and do not represent his firm or clients, explicitly stated, “Broadly, I don’t disagree with the many online complaints about these Nintendo patents. They have been an embarrassing failure of the US patent system.”
Procedural Irregularities Pave the Way for Broad Claims
Sigmon emphasizes that both the ‘387 and ‘397 patents reveal significant procedural irregularities within the USPTO’s decision-making process. These irregularities, he argues, provide Nintendo with additional legal leverage to potentially challenge its competitors.
The ‘387 Patent: A Minimal Pushback
The ‘387 patent, detailing riding and flying systems, faced some initial resistance. Its initial application was deemed invalid due to its resemblance to existing patents from companies like Tencent and Xbox. However, following amendments and discussions with the USPTO, the claims were ultimately allowed, with the office citing “substantially the same reasons as parent application(s).” Sigmon finds the prosecution history of the parent case (US Pat. No. 12,246,255) even more perplexing, noting that most of its claims were allowed immediately—a highly unusual occurrence. The only reasoning provided by the USPTO was a block quote of the claims themselves.
“This seems like a situation where the USPTO essentially gave up and just allowed the case, assuming that the claims were narrow or specific enough to be new without evaluating them too closely,” Sigmon contends. He strongly disagrees with this outcome, believing these claims should not have been allowable, especially given their potential obviousness to a “Person of Ordinary Skill in the Art” – a legal standard that dictates if a patent’s claims would be evident to a practitioner in the field based on prior knowledge, they are not patentable.
The ‘397 Patent: Unprecedented Easiness
Even more concerning is the ‘397 patent, which covers character summoning and battling mechanics. Despite the ubiquity of such concepts across countless games, this patent was approved without any recorded pushback from the USPTO—a scenario Sigmon describes as “essentially unheard of.”
The reasoning for allowance, much like the ‘387 patent, was minimal, merely paraphrasing the claims without explaining how they distinguished themselves from existing prior art. “This is extremely unusual and raises a large number of red flags,” Sigmon notes. USPTO records indicate a surprisingly limited review, involving only 16 US patents, seven Japanese patents, and reportedly, a single article from Pokemon.com. Sigmon expressed bewilderment, stating, “I have no earthly idea how the Examiner could, in good faith, allow this application so quickly.” While the original application was Japanese, Sigmon asserts this does not excuse the swift and seemingly superficial approval.
“This allowance should not have happened, full stop,” he declared.
Industry Implications and the Cost of Ambiguity
Though the ‘397 patent’s claims appear highly specific on paper, requiring word-for-word infringement for a successful lawsuit, the practical threat to competitors is substantial. Sigmon warns that even a weak infringement argument from a company of Nintendo’s size can effectively stifle innovation and competition. The mere threat of a lawsuit, which could cost millions to defend, is often enough to deter smaller developers from exploring similar mechanics.
“Bad patents like this cast a massive shadow on the industry,” Sigmon said, lamenting the “shocking and offensive” approvals. He believes the USPTO “dropped the ball big time,” imposing significant uncertainty and potential litigation costs on innocent developers and companies.
The Erosion of the Patent System’s Integrity
Sigmon, who has dedicated his career to protecting inventors from IP theft, affirms the inherent value of the patent system. He states, “That’s the kind of thing that patents are meant to do.” However, he decries its current misuse: “They were not made to allow a big player to game the system, get an overly broad patent that they should have never received in the first place, and then go around bullying would-be competition with the threat of a legally questionable lawsuit.”
Compounding the problem is the current environment at the USPTO, where challenges to questionable patents have become increasingly difficult. Under Acting Director Coke Morgan Stewart, many Inter Partes Review cases—special proceedings designed to challenge patent validity—are being refused for “discretionary” reasons. This forces patent validity issues into lengthy and expensive lawsuits, where costs can run into millions of dollars. The unfortunate consequence, Sigmon concludes, is that “bad patents get to fester on the market for longer and provide a bigger threat for the industry as a whole.”