Creativity on Trial: The Broader Implications of Patents on Creative Freedom in Game Development
Video games evolve by creatively refining existing mechanics, but when should inspiration become infringement? As major companies enforce patents to protect their ideas and markets, smaller developers face new creativity challenges. Nintendo v. Pocketpair, Inc. exemplifies this tension and could reshape how the industry balances innovation with intellectual property protection.
On September 18, 2024, Nintendo filed a lawsuit for patent infringement in the Tokyo District Court, seeking over ¥10 million ($65,000) against Pocketpair, the company behind the popular open-world game Palworld. Charles Morris, Nintendo Suit May Have Major Impact On Video Game Patents, Law360 (Dec. 9, 2024, at 5:30 PM EST), https://www.law360.com/articles/2265464/nintendo-suit-may-have-major-impact-on-video-game-patents; The Pokémon Company, Filing Lawsuit for Infringement of Patent Rights against Pocketpair, Inc., Nintendo Co. (Sept. 19, 2024), https://www.nintendo.co.jp/corporate/release/en/2024/240919.html. Palworld, frequently referred to within the gaming community as “Pokémon with guns,” skyrocketed in popularity upon its release in January 2024 with 25 million players in its first month. Morris, supra. However, the game’s popularity contributed to a new battle, drawing attention from its competitors, especially Nintendo and The Pokémon Company, resulting in a lawsuit for patent infringement. Id.
Patents are a driving force in many industries, protecting inventors by giving them the right to “exclude others from making, using, offering for sale, or selling” their inventions. Patent Basics, U.S. Patent and Trademark Office (last visited Oct. 22, 2024), https://www.uspto.gov/patents/basics/essentials#questions. Game developers patent different parts of their games, including software, physical consoles, and game mechanics. Patents are primarily used to give companies a competitive edge in the video game market by securing exclusive rights to use the innovations that make them unique among competitors. Arjay Parhar, IP Frontiers: Protecting Video Game Developers Through Mechanics Patents, HRFM Law (last visited Oct. 22, 2025), https://www.hrfmlaw.com/ip-frontiers-protecting-video-game-developers-through-mechanics-patents/.
Nintendo has several Japanese patents that cover mechanics for catching creatures by throwing objects, aiming at creatures, and a system for riding creatures. Morris, supra. In Nintendo Suit. Nintendo v. Pocketpair, Inc., Nintendo claims that Palworld’s “Pal Spheres” are too similar to Pokemon’s “Pokéballs,” both being game mechanics that are designed for creature capture within their respective games. Lars Thiess & Paul Zschommler, Nintendo vs. Palworld – Gotta catch all the patents, HÄRTING (Nov. 14, 2024), https://haerting.de/en/insights/nintendo-vs-palworld-gefangen-im-pokeball-patent/. Furthermore, Nintendo claims that the mounting system for riding creatures in Palworld is too similar to the one used in Pokémon. Id. Pocketpair previously stated it was unaware of the specific patents at issue when Palworld was released. Mark Magas & Wil Flachsbart, Nintendo Finally Sues Palworld Developer, but Not for Copyright Infringement, Dunlap Bennett & Ludwig (Dec. 20, 2024), https://www.dbllawyers.com/nintendo-finally-sues-palworld-developer-but-not-for-copyright-infringement/. Other similar games have seemingly avoided patent infringement suits from Nintendo by using different mechanics to capture creatures, providing no direct competition to Pokémon. Morris, supra.
Nintendo, like many other game developers, often uses patents as a defensive technique. Matthew Moersfelder, Patent Strategy in the Game Industry, Game Developer (May 24, 2007), https://www.gamedeveloper.com/business/patent-strategy-in-the-game-industry. Patents are commonly used to protect release timelines for game developers. Pahar, supra. Many games take a long time to develop, and if a core gameplay mechanic is patented before release, it could cause issues with release timelines and game functionality. Id. Nintendo has previously done this with its game, The Legend of Zelda: Tears of the Kingdom. Id. Nintendo filed multiple patents around the game before market release, seemingly as a defensive strategy to ensure game release and profitability. Id. Although many critics argued this tactic was too defensive, Nintendo sold over 18.51 million copies within seven weeks of its release, demonstrating how Nintendo’s patent strategy may have supported the games’ success. Pahar, supra; Kieron Verbrugge, Nintendo Sold More Than 18 Million Copies Of Zelda: Tears Of The Kingdom In Just Seven Weeks, Press Start (last visited Oct. 23, 2025), https://press-start.com.au/news/nintendo/2023/08/04/nintendo-sold-more-than-18-million-copies-of-zelda-tears-of-the-kingdom-in-just-seven-weeks/.
However, patent litigation and filing can become costly for smaller developers without a large financial backing. Dani Kass, IP Attorneys Aren't Playing Into Pokémon Patent Panic, Law360 (Sept. 16, 2025), https://www.law360.com/articles/2388813/ip-attorneys-aren-t-playing-into-pok-mon-patent-panic. Patents can create a monopoly for large gaming giants, like Nintendo, and force smaller indie developers to design around the patents. Morris, supra. There have been various patents on game mechanics, each raising issues around blocking creativity and innovation. IPISC, Video Game Patents: A Double-Edged Sword, IPISC (Oct. 22, 2024), https://ipisc.com/video-game-patents-a-double-edged-sword/. A notable patented gameplay mechanic is the Nemesis System in Middleearth: Shadow of Mordor. The Nemesis System allows in-game enemies to remember past encounters with players, which shape their future interactions. Id. The patent for the Nemesis System was heavily criticized for preventing other studios from building upon it to create more complex games. Id. Another patented game mechanic that was heavily criticized was SEGA’s Crazy Taxi Arrow navigation, which created “a large dynamic overhead directional object” over a moving vehicle “that indicates the direction of the objective.” Id. This patent led to an infringement suit with The Simpsons: Road Rage, which had a similar mechanic. Sega of Am. v. Fox Interactive, No. CV 03-05468 SBA, 2004 WL 2160090 (N.D. Cal. Apr. 6, 2004). Although the suit was settled, SEGA’s patent was criticized due to the patent’s broad scope and whether SEGA was the first to have the mechanic. IPISC, supra.
Patents do not have to be restrictive as seen with EA’s patent for the “ping” system in Apex Legends that allows players to “transmit contextually aware audio and visual communications generated via mappable controller inputs.” Id. When the “ping” system was patented, it raised concerns with many developers and players due to potential restrictions on an important gaming feature. Id. EA took this criticism and decided to license the patent for free, striving to “eliminate as many barriers as possible” to gameplay accessibility and creating a more inclusive gaming community. Electronic Arts, Our Patent Pledge for Increasing Accessibility, Electronic Arts (last visited Oct. 23, 2025), https://www.ea.com/commitments/positive-play/accessibility-patent-pledge. EA’s decision to license its patent for free demonstrates how large game developers can protect their intellectual property while creating a balance within the community by allowing creativity and innovation to thrive.
On September 2, 2025, Nintendo was granted a United States patent, No. 12,403,397, which covers Pokémon’s mechanic of throwing a sphere, releasing a creature, and having the creature fight an enemy automatically at the location where it is thrown. Kass, supra. This mechanic was used in the game, Pokémon Scarlet and Violet. Sisi Jiang, Pokémon Scarlet And Violet Introduce Auto Battle, Which Will Cut Back The Grind, KOTAKU (Sept. 8, 2022), https://kotaku.com/pokemon-scarlet-violet-auto-battle-lets-go-grind-switch-1849512520. This mechanic could face challenges under Alice Corp. Pty. Ltd. v. CLS Bank Intern. In Alice Corp. Pty. Ltd. v. CLS Bank Intern, the Supreme Court held that “method claims requiring generic computer implementation failed to transform the abstract idea . . . into a patent-eligible invention.” Alice Corp. Pty. Ltd. V. CLS Bank Intern., 573 U.S. 208 (2014). Under this holding, courts consider whether the claims are abstract and whether there is any added inventive concept, increasingly finding that software was not patentable. Kass, supra. Legal experts believe that thispatent is too broad and not sufficiently unique, creating validity concerns under Alice if Nintendo were to enforce its new patent. Kass, supra. Critics state that with this patent, Nintendo appears to be trying to patent an entire video game genre. Kass, supra. Nintendo will likely seek litigation against Pocketpair in the United States on similar grounds. Womble Dickinson, Gotta Catch ’Em All...In Court?: Nintendo Bolsters U.S. Patent Portfolio In Wake of Japanese Lawsuit Against Pocketpair, JDSupra (Sept. 12, 2025), https://www.jdsupra.com/legalnews/gotta-catch-em-all-in-court-nintendo-9159499/. Nintendo’s patents, both new and old, create a greater challenge for smaller game developers and force them to either work around Nintendo’s patents or face an expensive litigation gamble with the gaming giant.
Pocketpair has already removed certain game features from Palworld in response to Nintendo v. Pocketpair Inc. Pocketpair, Regarding the lawsuit, changes to Palworld and the future, Pocketpair, Inc. (May 8, 2025), https://www.pocketpair.jp/news/20250508. As of May 8, 2025, Pocketpair released a statement outlining various changes it made to Palworld “to avoid disruptions to the development and distribution of Palworld.” Id. Palworld removed the ability to summon creatures by throwing spheres and instead statically summons them next to the player. Id. Players are no longer able to glide with creatures and instead must use a glider. Id. Palworld’s changes exemplify how patent litigation forces game developers to change their games around patents, frustrating both developers and players and limiting creativity and innovation in the game industry.
If Nintendo were to win its case against Pocketpair, the precedent could go on to affect how patents are used in the game development industry, potentially leading to more patents on various game mechanics and features. Whether the lawsuit continues to develop or settles, Nintendo v. Pocketpair, Inc. will leave a lasting mark on how patents shape innovation, creativity, and the future of game design and development.