Patent World | A Lawyer's Take on Nintendo vs PalWorld

Lawyer Richard Hoeg (Hoeg Law) provides an in-depth analysis of Nintendo's lawsuit against PocketPair, focusing on the legal intricacies of patent infringement claims. He revisits the background of Palworld and explores international and Japanese patent law implications on the case. Richard dissects the differences between trademark, patent, and copyright protection, and speculates on PocketPair's legal response and strategy. The episode explores the risks associated with evoking established brands, the role of patent functions, and the potential impact on game releases. Concluding with viewer comments and a discussion on Nintendo's motives, Hoeg offers insights into the broader implications for the gaming industry.

Episode Transcript

(00:38):
Hello, and welcome to another episode ofVirtual Legality.
I'm your host, Richard Hogue, managing memberof the Hogue Law Business Law Firm of
Northville, Michigan, and I am very happy to beback here with you all talking about law and
video games and everything in between.
So with that as our introduction, we have a lotto talk about today, so let's get to it.

(00:59):
1st and foremost, if you aren't familiar withanything related to this story,
congratulations.
You've avoided most of the video game discourseon the Internet.
But, also, I wanted to point you to a video Idid earlier this year called is Powell World
Legal, where I was fielding a number ofquestions regarding copyright law and whether
or not the designs like the one you see on thethumbnail here were too close to the sun of

(01:23):
what Nintendo designs for their own Pokemon andthat they were gonna get in trouble, the people
that make Palworld pocket pair, for havingthese designs be so close.
And I had a long video, we talked about allthese issues, and I said that copyright is not
infringed just by vibes.
Right?
You can't just protect the way a certain animalcurves, the concept of an electric mouse, and

(01:45):
the various other things that people on theInternet were saying were violated by the
existence of Pal World.
What I didn't talk about was patent law, whichis what we're gonna talk about today, because
it wasn't really pertinent when people werediscussing whether or not characters like the
one you see here were violative of Nintendo'sintellectual property.
But lo and behold, about 10 days ago, Nintendoannounced that they were filing a lawsuit

(02:10):
against pocket pair.
What were they filing a lawsuit for?
Well, as they say in their headline,infringement of patent rights.
Nintendo company together with the Pokemoncompany filed a patent infringement lawsuit in
the Tokyo District Court against PocketPair Incon September 18, 2024.
And here's where I give one of my disclaimersthat we'll have in this video, and I have a
couple of them.

(02:31):
The first of which is that I'm an Americanlawyer.
I am licensed to practice law in the state ofMichigan.
I do software and business law, and I havediscussed intellectual property with some of
the biggest companies in the country and someof the smallest companies in the country.
But I do not practice law in the country ofJapan, and every country is going to have
little interesting procedural issues that aregoing to be unique to that locale.

(02:54):
If you were to come to me in my office and say,Rick, I've got a patent infringement lawsuit
proceeding in the Tokyo District Court, I wouldtell you to find local counsel that knows the
ins and outs of Japanese patent law before youwent through with that lawsuit.
But we can talk in more high level generalitieshere on YouTube, and we can talk about some
articles and other research that I have foundwith respect to Japanese law to understand

(03:17):
better how our understanding of United Statespatent law and patents in general can help
inform how the Japanese court system might seethis issue.
But proceeding with the press release fromNintendo, this lawsuit seeks an injunction
against infringement and compensation fordamages on the grounds that Pal World, a game
developed and released by the defendant,infringes multiple patent rights.

(03:38):
Now interestingly, this jumped out at me assoon as I saw this press release because this
is where you would ordinarily tell the worldwhat patents you think are infringed.
Right?
The fact that Nintendo doesn't say that here isinteresting to me.
Certainly reading it, you could suggest thatNintendo doesn't want the public to think about
what patents it's alleging to have beeninfringed or that it doesn't want PocketPair to

(03:58):
know what it is alleged to be infringed.
And we'll see in PocketPair's statement in justa minute that PocketPair, as of the day of this
filing and the day after, was not able to tellyou which patents were alleged to be infringed.
And that's important because unlike a copyrightclaim, and we're gonna get into the differences
of this intellectual property if this is goingalready too fast and confusing for you.
I don't blame you.

(04:19):
If this were a copyright infringement claim, itwould be patently obvious.
I don't mean to use the word patently in thiscontext because that's even more confusing, but
it would be obvious on its face that whatNintendo was alleging was essentially designs
being stolen.
The art of Pokemon being stolen and put be putin something like PAL World.
The fact that they are instead alleging patentinfringement suggests a couple of things.

(04:41):
1, like I said in my earlier video and like anumber of people said online when people were
arguing about it, there was no obvious assetstealing in Pal World and Pal World's a very
different game from Pokemon.
So it is not an obvious case of copyrightinfringement and it would appear that since
copyright infringement would be more valuableto Nintendo, that Nintendo has said we're not

(05:02):
gonna seek a copyright infringement claim.
We're instead gonna go this patent direction.
And because of that, I think we're looking at amuch narrower danger for PocketPair and Pal
World.
And if you take nothing else away from thisvideo, I would say you should take this.
In my opinion, it is very likely that if youenjoy Pal World as it is right now, Pal World
in a substantially similar capacity will existfor you into the future.

(05:26):
You'll see articles talking about Nintendo'sdanger here.
You'll see articles talking about Nintendowinning all of its intellectual property cases
that it voluntarily brings and all thesevarious things.
But winning is in the eye of the beholdersomewhat.
And while pocket pair might well wind up owingmoney or some other settlement obligation to to
Nintendo as part of this, we don't really knowbecause we haven't seen what patents are

(05:47):
alleged to be infringed as of yet.
It is likely the case that what is going tohappen here is not the complete removal of
Power World, but potentially smallish changesto make sure that it's not infringing and some
settlement amount with Nintendo.
I can't promise that.
Nobody can guarantee these things when theylook at it from a legal perspective, but if you
take nothing else away, if you're a fan of PalWorld and what they represent, my opinion here

(06:11):
is that looking at a patent case of this typeand of the type that people have identified in
the various rumors and innuendo around thegaming industry is suggestive to me of a PAL
world that can succeed and can exist into thefuture, perhaps with some small changes that
probably won't materially affect your enjoymentof that product if you like Power.
So I wanted to get that out there upfrontbecause I think that's an important message to

(06:33):
send.
There's a lot of people with doom and gloom outthere saying Nintendo is gonna destroy them.
Nintendo planned this for 8 months, and they'regonna kill them.
And they certainly are seeking a pound offlesh.
That is undoubtedly the case.
That's why this lawsuit gets filed, but I don'tthink this is a PAL world killer at the end of
the day.
Nintendo finishes with an interestingstatement.
They're saying they will continue to takenecessary actions against any infringement of

(06:53):
its intellectual property rights, including theNintendo brand itself, which is not an issue
here and wouldn't be an issue in a patent case,so it's odd to add in this context, but hey, to
protect the intellectual properties it hasworked hard to establish over the years.
And so that's the lawsuit that came out.
A number of people that were expecting Nintendoto sue over this kind of quickly and
erroneously reported it as a copyrightinfringement lawsuit because that's what we

(07:16):
were expecting.
But it is a patent lawsuit.
It is a narrowly focused lawsuit on specificpatents.
We don't know what those patents are yet, butjournalists have gone out and tried to figure
out what the patents are.
There are some good guesses out there that wewill talk about as part of this video.
But in general, because they are gonna be sodirected at specific mechanics in a video game,

(07:38):
those mechanics can be changed, the product cansurvive, and perhaps PocketPair will owe an
amount of damages in settlement to Nintendo.
I certainly don't see this lawsuit proceedingfor years years years and everybody spending
1,000,000 of dollars on lawyers.
I think it's much more likely to settle likealmost all civil lawsuits are, but we will
certainly see as this story continues.
Now on that score, I did wanna mention to folksbefore we get into the specifics of law and

(08:01):
patent and everything else that this is achannel supported by viewers and listeners like
you if you're listening to it in podcast.
If you are live, we will be talking about superchats and membership comments and various
things, especially during the questions andcomments section at the end of this video.
But if you're not live and you're watching thisin replay or on podcast, leave a comment, and I
will try to get to as many of them as I can toanswer questions and hopefully add to the

(08:25):
information in the universe about this topic.
Because if virtual reality stands for anything,it is wanting to get more and better
information out there so that we can avoid someof the confusion around these topics from well
meaning people that just misunderstand certainkey aspects of what these stories are about.
Now on that score, let's talk about thedifference between trademark patent and

(08:46):
copyright from the United States Patent andTrademark Office.
Now we're gonna use the US because again, I'mlicensed in the United States to practice law,
but also because the way intellectual propertyworks, because we have these multinational
corporations that sell things across borders,treaties and various other international legal
mechanisms are used to make sure thattrademarks, patents, copyrights, intellectual

(09:07):
property in general are acknowledged by most ofthe jurisdictions that companies would care
about.
So when we talk about these differences in theUnited States, these differences are going to
survive in large part in various jurisdictions,including Japan.
Where they differ is that, like, in the UnitedStates, we have courts and the USPTO, and
various other regulatory bodies evaluatingthese definitions and what they mean in our

(09:31):
jurisdiction in the United States.
Every other jurisdiction is gonna interpretthem their own way and have their own
procedures towards doing that, and we will seein just a minute how Japan differs in a way
that might advantage Nintendo.
But trademarks, as we see here from the US tPTO, are words, phrases, and designs that
identify your goods or services.
What's an example for that?
They say Coca Cola.

(09:51):
Right?
These are the brands that we think about.
A patent, by comparison, is an invention, suchas a chemical composition like pharmaceutical
drugs, mechanical processes like complexmachinery, or machine designs that are new,
unique, and usable in some type of industry.
Now patents also incorporate certain designelements, but the US Supreme Court has been

(10:11):
very careful or at least tried to be verycareful in telling companies that they can't
just get around the fact that a copyright can'tbe applied to an idea by patenting kind of the
design of that idea and then suing others overinfringement of that design.
So this gets a little bit technical here, butpatents are for inventions.
They are for novel ideas that are presented ina new way that industry can use, to better

(10:37):
further its development in some form orfashion.
Copyright, which is what we usually talk aboutin virtual reality with respect to video games
and movies and whatnot, is protections ofartistic, literary, or intellectually creative
works such as novels, music, movies, software,photographs, and paintings.
Right?
This is the creative act.
This is Pokemon as a whole.

(10:58):
The the the concept of the Pokemon video game.
The way a Pikachu looks, that is copyrighted.
It's not patented.
But there are aspects of how a game is madethat can be patented that we've talked about in
this space before, including with respect tothe nemesis system that Warner Brothers
patented for its Middle Earth series of games.
And so there can be cases where you want toencourage video game developers, software

(11:23):
producers, if they're in more seriousenterprise level software making, to be able to
control an invention that they make because wewant to encourage those inventions to exist.
Or as the Federalist Papers said, with respectto the constitutional authority given to
Congress to create these various monopolies,the utility of this power will scarcely be

(11:45):
questioned.
Now I think that's probably a little bitnarrowly focused.
I think it's questioned quite a lot right now,but that's for policy reasons to talk about how
long a copyright lasts, how long a patentlasts, etcetera.
The copyright of authors has been solemnlyadjudged in Great Britain to be a right at
common law.
The right to useful invention seems with equalreason to belong to the inventors.
The public good fully coincides in both caseswith the claims of individuals.

(12:09):
The states cannot separately make effectualprovision for either of the cases, and most of
them anticipated the decision of this point bylaws passed the instance of Congress.
Another way, we want patent and copyright andtrademark monopolies to be granted to the
various folks that put them out there in theworld because we want them to be incentivized
to put them out in the world.
Now that doesn't mean that they can't go toofar.

(12:29):
That doesn't mean that patent trolls don'texist and that you can't actually use these
monopolies on intellectual property to squelchor try to squelch competitive behavior, which
is I think what people are reacting to whenthey say they hope Nintendo loses this case and
things like that.
But we don't really know what patents they'reeven seeking to prosecute on this point, so I
would caution folks before they get to thatstep that we need to know what patents we're

(12:52):
talking about.
And I had held this video in the hopes thateither Nintendo or PocketPair would release
that information, but that didn't happen beforethis video.
And I thought it was important enough to talkabout the differences between copyright and
patent with you all so that we could havebetter informed conversations out on the
Internet on this topic first and foremost.
Now PocketPair did respond to this as Ipromised.

(13:13):
They said a little bit more than a week agothat yesterday, a lawsuit was filed against our
company for patent infringement.
We have received notice of this lawsuit andwill begin the appropriate legal proceedings
and investigations into the claims of patentinfringement.
At this moment, we are unaware of the specificpatents we are accused of infringing upon, and
we have not been notified of such details.
And people ask me about this in my DMs andotherwise.

(13:35):
And when I read this section, I read it aspaperwork.
It's a little bit different than in the UnitedStates where you'd have to be served with the
complaint against you, and a complaint in alegal context has to tell you what you're
accused of doing.
Right?
In this case, it sounds like they get noticedthat they are a named party in the Tokyo
courts.
And as they are given that notice and it's apatent infringement claim, they know that much,

(13:59):
but they haven't seen the complaint yet as ofthis time, September 19, 2024.
Now I have every reason to believe they've seenit by this point in time, and there's probably
a story there with respect to the fact thatneither Nintendo nor PocketPair are actually
releasing what patents we're talking about.
But everything there would be speculative atthis point, and so I don't wanna speculate too
much other than to say it does strike me thatNintendo doesn't share what patents it's

(14:23):
talking about, presumably to keep the goodwillof their brand name, and because they don't
necessarily want pocket pair to just change thepatented behavior in their video games, and
avoid getting into the weeds here with respectto this lawsuit.
So that that frames Nintendo in a negativelight, and that may be unfair to them, but
there's other reasons why they might not besharing the patents with us.

(14:44):
Certainly, the fact that pocket pair also isn'tsharing them is its own kind of negative light.
But I did want to at least point out that thepeople that are guessing at these things are
guessing without specific information fromthese companies themselves.
They also PocketPair says, we will do ourutmost for our fans and to ensure that indie
game developers are not hindered or discouragedfrom pursuing their creative ideas.

(15:07):
And Nintendo fans that came out and came outagainst this particular line said, well, you
aren't helping indie game development if you'rejust stealing ideas, but we're probably not
talking about Pocket Pair or someone else goinginto Nintendo's code and figuring out exactly
how they do something that can be patented andthen copying it in their own game because that
would be disastrous and that paper trail wouldabsolutely kill them.

(15:29):
Instead, we're probably talking about gamecompanies and software companies in general
that create a mosaic of patents that kind ofcover everything that their software does, and
that you can essentially accidentally trip intoby developing things along similar lines.
Right?
You can have ideas that are similar to ones inexistence, and probably you didn't check every

(15:50):
patent in Japan for something that couldpotentially be applicable to the way that you
have solved this particular software problem.
So I don't want people to just assume thatPocket Pair has stolen this, although I do at
least empathize with the position that theywere so close to some of the design vibes of
Pokemon that you want to see them in a negativelight on this score as well.

(16:13):
We just truly don't know enough to go on those,on that particular description.
Now I also wanted to include a little bit moreon patents from the USPTO.
Again, this is a document called demystifyingthe patent system.
Now as you can expect from a USPTO or other USgovernment document, this demystifying the
basics of patent law is a short, spelt 46 pageslong.

(16:35):
We're not gonna be going over every detailthere, but we are gonna be talking about a few
things.
The historical foundation of intellectualproperty, we covered when we discussed the
Federalist Papers.
But what is it patent?
It's the right to exclude others from making,using, selling, offering for sale, or importing
the claimed invention.
It is of a limited term, although some wouldargue that limitation is not nearly limited

(16:56):
enough, and it is territorial.
A US patent provides protection only in theUnited States.
No worldwide patents.
Now that's probably a little bit reductive.
As I said before, when we look at Japan and welook at other countries in the world, for the
most part, these countries have internationallaw conventions between each other so that each
can recognize the intellectual property of theother.

(17:18):
We see USPTO even keeps a Japan file that saysthey are in line with the Paris Convention for
priority of overseas IP filings, the PatentCooperation Treaty for international patent
applications, the Hague Agreement, and theMadrid Protocol in an and among others.
And I'm not a patent lawyer.
One other disclaimer I would give is that thepatent lawyers in the United States are

(17:39):
actually licensed under a different bar thanevery other lawyer in the United States.
It's a patent bar with specific patent rulesthat you have to learn and that are really more
accessible for people with a scientificbackground or a mechanical engineering
background or something along those linesbecause it is such a specific kind of skill
set.
So we're gonna see in just a minute what theclaims of a bit of intellectual property look

(18:03):
like, but they're gonna look foreign even tome, let alone to you.
So it's important to understand that patentlaw, even above other law, is a niche
specialty.
And so we are talking about these things asbest we can without having that special
expertise myself.
So I wanted to say that as part of Japan.
I also wanted to say the Internet is awonderful thing, and we can, in fact, do

(18:26):
research on these various things.
And a lot of lawyers have put up interestinginformation about their jurisdictions that we
can go and read about.
So this is from a company called YMFLaw Tokyothat talks about the defenses to patent
infringement in Japanese litigation.
I thought this was particularly important tounderstand with respect to the lawsuit in Tokyo

(18:46):
because the defenses are pretty much the sameas we might see in America.
You can claim if you're being sued for patentinfringement that you didn't infringe, that
whatever you made doesn't infringe for reasonx, y, or z, that the patent was essentially
improvidently granted, That the patent shouldbe deemed unenforceable because the patent
office that put it out there didn't do itsproper research, didn't follow the laws and

(19:07):
regulations that were out there.
And so the patent itself that you're being suedover shouldn't be something that you can be
sued over, and then you can win because thepatent is invalidated.
And when we see other articles in just a minutetalk about the fact that this is a risky avenue
for Nintendo, that's what they're talkingabout.
That the patents that are at issue here couldbe invalidated or that others could see

(19:28):
weakness in the Nintendo patent portfolio ofsome kind by seeking this particular pursuit.
Now I don't actually think that this is aparticularly risky avenue for Nintendo, but you
will see that in a couple of other headlines aspart of this video.
And I wanted to mention non enforceabilitybecause this is where the really interesting
thing in Japan comes up.
One of the peculiar features as summarized bythis YMF Law website of Japanese patent

(19:52):
litigation is that the adjudication of apatent's validity in the first instance is
reserved for a panel of examiners at theJapanese patent office.
Historically, the labor of adjudicating patentinfringement and patent validity was divided
between the district court and the JPO.
If an accused infringer wish wish to assertthat the patent was invalid, its only choice

(20:13):
was to initiate an invalidation proceeding atthe JPO under article 123 of the Patent Act.
The district court was likewise resigned topress forward with the trial of infringement
and damages issues even where it was clear thatthe patent ultimately would be invalidated
before the JPO.
Said another way, in the United States, bycomparison, you can get sued and in court say

(20:34):
that the USPTO didn't grant this patentproperly, that it's too broad, that there's
prior art that exists that should invalidateit, etcetera, etcetera.
But in Japan, the setup is slightly different,that the JPO is essentially the final arbiter
of whether a patent is validly granted.
And so if you go through the court system aspocket pair is going to have to do with
Nintendo, the district court, for the mostpart, is going to have to listen to the fact

(20:59):
that the patent was issued in the first place.
Now this changed a little bit in 2,000 assummarized in this particular web article.
In Fujitsu versus Texas Instruments, theJapanese Supreme Court substantially resolved
the dilemma by holding that the district courtmay entertain evidence concerning an asserted
patent's validity and as a matter of equity,fairness, decline to enforce a patent that has

(21:20):
clear grounds for invalidation.
So another way, they don't have to completelyignore, the fact that this patent was
improvidently granted, and they can say thislawsuit shouldn't proceed because the JPO is
essentially going to invalidate it at someother point in time.
But as you can imagine, that isn't as clear asthe case in the United States where you can
just challenge these things directly in court.

(21:42):
And as this article continues, it says it doesprovide for areas of gray problem in in the law
because the JPO might not do exactly what thecourt thinks it's going to do, and you might
have issues with that as well.
And so we have an issue with the fact that thisis in Japan.
It's probably going to be harder to invalidatea patent even if it was wrongly granted in

(22:05):
Japan than it might otherwise be in the UnitedStates.
And Nintendo is, of course, a giant company inJapan, has Mario on the Japanese airport and
things like that.
And so if your pocket pair, you have reasons toworry just be based on the chip stack on the
other side of the table.
But we can say that this particular case is onein which the patents may be challengeable

(22:29):
depending on what they look like.
So let's take a look at what that might mean.
So one thing I did wanna give a hat tip to is ais a tweet that I saw from Jen of Hatred TM,
probably not trademarked, but who knows, atgenbox360 on twitter/x.
If you're wondering why Nintendo are suingpocket pair for patent infringement and not
copyright, this is an interesting statementfrom Bloomberg.

(22:52):
And Bloomberg's article on this score ispaywalled, so we're not gonna look at that
directly, but we are gonna look at an articlethat discusses it.
Nintendo filing this lawsuit for patentinfringement, not copyright violation, means it
has given up making the case that Power World'scharacters are similar to Pokemons, said Toyo
Securities analyst Hideki Yasuda.
Now I wouldn't put that quote just that way.
I don't know that they've given up, But I thinkin a legal analysis like the one we did here in

(23:15):
virtual legality earlier this year, the lawyersin Nintendo probably said, this is kind of a
pie in the sky attempt.
If we're gonna try to sue them for copyrightinfringement, it's not obvious they stole
assets.
You can't copyright an idea.
You can't copyright a vibe just like you can'tpatent an idea.
You can't patent a vibe.
You can only patent the execution of theconcept.
But this particular analyst comes to aconclusion that is similar to mine saying that

(23:40):
Nintendo would prefer to have a copyrightviolation because they can just axe Power World
off the face of the planet, and that the factthat they aren't doing that suggests that they
didn't find something that they could sue onthat over.
But this analyst continues, it shows Nintendohas more ways to stop games it doesn't like.
The company owns a lot of patents related tobasic game mechanics that are used in many
titles available today.

(24:01):
And I do think this is part of the story.
Again, I wouldn't frame it exactly the sameway, but part of the story to me is that
PowerWorld did fly close enough to the sun toget Nintendo's attention.
It was hugely successful.
The designs of the pals are very evocative ofPokemon even if they aren't identical, even if
they aren't stolen assets.

(24:22):
And if you rub a company that has a patentportfolio or just a huge amount of money on
their side of the table the wrong way, this iswhen that sort of gamocles can start to hang
over your head.
We talk about it a lot with respect to Twitchstreamers or other streamers in the live space
or people that make reaction videos to variousthings in video games.
But for the most part, a lot of those uses aretechnically violative or would seem to be

(24:44):
technically violative of intellectual propertylaws, and you are living at the largest of
these companies to some extent.
Now this is a different issue, but it is asimilar kind of concept that Nintendo probably
doesn't bother you if those designs are a lotdifferent or even a little bit different and
don't evoke Pokemon and have journalistsconstantly saying Pokemon with guns to describe
your game.
But since that was the case, even if they can'tget you on copyright infringement, they might

(25:08):
try to find another way, and that does appearto be what happened here.
And that's a part of the story itself.
I did wanna catch a few other things in thispatent summary before we get too far.
There's a couple of different types of patents,utility design and plant.
Design here is one thing that we can't justthrow out the window.
It's possible Nintendo has the equivalent of adesign patent on some ornamental feature of the

(25:33):
Pokemons that is copied in Power World.
We just don't know because we don't know whatpatents we're talking about.
But everybody is assuming, and I think probablyaccurately, that we're talking about utility
patents.
Patents on inventions, the function of thingsin a mechanical sense.
Yes.
It's software, but it's still a mechanicalsense when we talk about it.
The USPTO is great.

(25:54):
Why invention matters?
What this means to you?
Patents promote innovation and help safeguardyour inventions.
They help companies grow.
They benefit the community by making new goodsand services accessible, and they provide
personal growth development and advancement.
Now you don't have to agree with all thesepolicy prescriptions.
This is the USPTO, of course, tooting their ownhorn about what it is that they do and why they
get up in the morning.
But the concept as we discussed with respect tothe Federalist Papers there is that by allowing

(26:17):
inventors to have this protection, weincentivize inventions on the whole, that more
inventions exist because of that protection.
And that further, because patents are publicinformation, you're essentially getting all of
this information and invention out there to thepublic, and the public can build off of it.
So at least as patents are supposed to befunctioning, the way that the nemesis patent or

(26:41):
the or whatever we're talking about withrespect to Nintendo patents here operate, it
should be under the assumption that the factthat that has to be revealed to the public
means that other people can build on it in anovel and new way and have their own patents
and own inventions.
If that isn't the case, then, yes, they mightbe get being granted incorrectly.
We might be in our court system or the Japanesecourt system or any other court system

(27:03):
allowing, quote, unquote, patent trolls toessentially put up motes around things that
should be simple and well understood.
The patent application journey, we can skipthrough.
This is one that I wanted to capture becausethis is probably the most important aspect of
what we're gonna discuss with respect toNintendo.
When we're talking about patents, they have tobe new.
Is your idea novel and non obvious?

(27:24):
Novel.
Your invention has to be new and not describedin prior art.
It can't be something that existed before.
It also, and this is important, has to be nonobvious.
The differences between your invention andeverything that existed before you, can't be
obvious to someone with experience in yourfield.
Right?
So when we're talking about things likethrowing pokeballs at somebody in a

(27:46):
three-dimensional space, one could argue thatthat follows directly from the way
three-dimensional space has been operated sinceat least, ironically, Mario 64.
And so that probably isn't something that isdeserving of separate protection depending on
how the claims are actually written.
And that's the kind of thing that if yourpocket pair, you would bring up in court.
But as I said, in Japan, it might be a biggerissue because the JPO apparently has already

(28:09):
issued this patent as a continuation of a priorpatent, and so it's not going to be as perhaps
effective a defense as it would be in otherjurisdictions.
So those are all things that you're taking intoaccount if you're sitting in on these legal
board meetings, and you've got lawyers on oneside, and you've got the developers on the
other, and you've got the board and the moneypeople on that third side of of the room, and

(28:31):
they're trying to figure out what makes sensein terms of risk profiles and everything else,
what to do.
Pocket Pairs' likely solution here is going tobe to settle this because there's enough
question marks in court and because PowWoworldis worth enough money that it makes sense to
give a certain amount of money to Nintendo inrespect of it.
But we don't know what we don't know, and wedon't know the future certainly as we look at

(28:52):
these issues.
What is prior art?
I think it's self explanatory even for legalterminology, but it's everything that existed
before you tried to make your invention.
And then we got more on the patent applicationjourney, but we will skip ahead to some of the
other stuff we wanted to talk about.
This is an article from, I think, the gamer,Nintendo and the Pokemon Company's lawsuit
against fellow creature collectathon, PalWorld, is for patent infringement rather than

(29:15):
copyright infringement.
And one analyst reckons that means Nintendo hasgiven up on trying to argue that pals look too
similar to Mons.
Do we call Pokemons Mons?
I don't think I've ever heard that.
Nintendo announced that it was filing a lawsuitagainst developer Pocket Pair earlier this week
for infringing multiple patent rights in orderto protect the valuable intellectual property
that we have built up through many years ofhard work.

(29:36):
Nintendo had previously said it was lookinginto potential cases of copyright infringement
right around the time when Power World became abooming success.
So most people speculated that if a legalbattle between the 2 monster gamers were to
start, it would be centered around the creaturedesigns visual similarities.
I mean, I think that was really the only thingthat really irked people was that it looked so
much like Pokemon.
But I do wanna point out as part of kind ofjournalistic integrity here that Nintendo has

(29:58):
previously said it was looking into potentialpieces of copyright infringement does not
appear to be accurate to me.
This link links out to Nintendo's originalstatement that said, we have received many
inquiries regarding another company's gamereleased in January 2024.
That's PAL World of You and Me.
We have not granted any permission for the useof Pokemon intellectual property or assets in

(30:18):
that game.
We intend to investigate and take appropriatemeasures to address any acts that infringe on
intellectual property rights related to thePokemon.
We will continue to cherish and nurture eachand every Pokemon and its world and work to
bring the world together through Pokemon in thefuture.
And I'm sorry.
This wasn't from Nintendo.
This was from the Pokemon company.
But you can see even here, we've got peoplethat are just kind of trying to report on this

(30:40):
on an objective basis, assuming that thatdiscussed copyright infringement when all it
talked about was intellectual propertyinfringement, which incorporates patents and
trademarks.
So we do have these kind of light issues whenwe talk about journalism and reporting on
topics like this, and hopefully, videos likethis one can help stamp out some of those
inconsistencies and misinformation.

(31:01):
Speaking to Bloomberg on the quote that we justlooked at on Twitter, the toy Toyo Securities
analyst Hideki Yasuda explains that since thelawsuit is purely to do with patent rights,
Nintendo isn't going to bother arguing thatAnubis looks too much like Lucario, for
example.
Well, they can't in the lawsuit that theyfiled, at least if it doesn't include copyright
claims, and we have no reason to believe thatthat they do.

(31:22):
I won't pretend to be a legal expert, says thisauthor, but from what I understand, patents
normally protect someone's inventions.
Yes.
Like software or machinery, while copyrightsusually protect someone's work.
I mean, I I could go further than usingnormally and usually there.
That's what they do.
Like books, music, and art.
Details about the case are still under wraps,so no one really knows what Nintendo will
argue.
Now one thing I don't understand about thisstory is why Japanese journalists haven't been

(31:45):
able to go into the Tokyo, filing system andfind this, but it is possible that in Japan,
they just aren't made as publicly available asthey are in the United States.
Continuing on, that's all we had for thatarticle.
We do have some other things that are happeningthat I wanted to discuss with respect to
guesswork and journalism.
Right?
So with this big void as part of the story,Nintendo won't say what patents they're talking

(32:09):
about.
Power World won't say what patents they'retalking about.
We had a lot of folks interested in this story,wanting to find out what patents we are talking
about because the very first thing thejournalist realize is when we're not talking
about a copyright infringement claim, we are wehave to be talking about specifics.
And so as we see in this IGN article, a lot ofpeople went searching for what patents we might

(32:30):
even be referencing with respect to Nintendoand the Pokemon company.
Here's IGN's article entitled Nintendo versusPow World, killer patent, maybe about the
mechanic of catching Pokemon.
They say, Kiyoshi Kurihara, and I apologize inadvance for my pronunciations here, a Japanese
patent attorney and consultant on intellectualproperty spoke to Yahoo Japan on the lawsuit

(32:51):
and pointed to a killer patent that it revolvesaround the mechanic of catching Pokemon itself.
And I also saw this referenced by StevenTotilo, formerly of Kotaku, formerly of Axios,
currently runs a, I think a medium site calledGamefile, which I do recommend.
They have a lot of good information.
He does a really good job.
It seems it would be hard to avoid if you wannamake a Pokemon like game, and it's easy to

(33:11):
infringe if you're not careful.
Kurihara is quoted as saying, in generalgameplay terms, Pow World's survival and
crafting mechanics are more like those of Arcthan Pokemon.
Yes.
One thing that jumps out at you is that PowWorld plays nothing like a modern Pokemon game.
After Pow World's huge launch earlier thisyear, comparisons were made between Pow World's
pals and Pokemon, with some accusing PocketPair of ripping off Pokemon designs.

(33:34):
But rather than file a copyright infringementlawsuit, Nintendo and the Pokemon company have
gone down the patent route.
Kurihara identified 4 divisional patentapplications that Nintendo and the Pokemon
Company jointly registered after Power World'slaunch in January.
Now this is important.
A divisional patent contains isolated contentfrom an already registered parent patent.

(33:54):
So they have these patents filed, I think, in2021.
But you can go and you can narrow the claims.
You can take what amounts to a large patent andsay, this is this is a different patent that is
kind of the the the child of the above patent,and we are going to do this for a number of
reasons.
One of which is that you can sue over itwithout dragging in all this extra information
or all these extra areas where you mightotherwise get challenged.

(34:16):
The patent Kurihara believes is the focus here,7545191, describes aiming a capture item, Poke
Ball, at a character placed on the field, aPokemon, releasing the capture item in a
direction determined by player input, judgmentof whether capturing is successful or not upon
contact between the capture item and thePokemon, and changing of the Pokemon status to

(34:37):
owned by the player when capturing issuccessful.
In addition, the patent also covers themechanic of having capture probability
displayed to the player regardless of whetherit uses colors, graphics, or numbers.
Now here's where I think things get a littlebit confusing for people.
This is what we would call the abstract.
Right?
This is the idea.
The idea isn't actually patented.
Much like copyright only protects theexpression of an idea, when we talk about a

(34:59):
patent, the legal bounds of a patent are onlyin what we call the claims under the patent,
and we'll see how difficult those are tointerpret in just a second.
But this idea drives people crazy because theythink, okay.
They then they have protection on anybodythrowing anything at a monster in the field,
and then they can sue over it, and it's notexactly the case.

(35:19):
They have to specify exactly what it is thatthey are patenting, how their software works,
and they can write it too broadly and it shouldbe invalidated.
But mostly, the claims should be very specificto the way this operates for their game.
Now you'll also note that some people came tome in my DMs or my messages and said, hey,
Rick.
If they have a patent and Pokemon is 30, 40years old, how could that still be applicable

(35:43):
today?
And the answer is this particular one thatwe're talking about here is really only
happening in Arceus and on.
Right?
The earlier Pokemon games had you go into aturn based battle, select a Poke Ball, and get
that Pokemon and certain mathematics that metin your favor.
In RCS, you're actually out there in athree-dimensional field, and you're throwing a

(36:03):
ball, at something that you can see, and thatmight be the difference.
This might be a winner for them that whatyou've got in Power World, which is a, I think,
a a POW ball it might be something else.
A POW sphere, I believe.
Yes.
Totally different word than ball.
A PAL sphere that you throw at a at a monstermight be too much.
It might be the case that this does infringethe patent as viewed by Japan as issued by the

(36:25):
Japanese patent office.
But you can pretty easily change this to, asDigimon does, having them fired into a card,
cassette piece has them become recorded on acassette tape, various other things that can
happen that maybe get you out of thatinfringement, maybe are okay with Nintendo.
Yes.
You probably have to pay a settlement fee toget this out of court at this point in time,

(36:45):
but that might still be what pocket pair andPal World decides to do.
And when we talk about things like this, we areonly talking about these very specific things
and not the game itself, which is why I said atthe beginning of this video, I think you're
looking at a game that can make a couple ofchanges and probably be fine.
Assuming that the patents that we're talkingabout here and in other places are the ones

(37:08):
that are actually at issue, We don't know thatfor sure, and there could be others that come
into play that are troublesome for pocket pair.
I'm particularly concerned about potentially arendering technology that makes the Pokemon
look like Pokemon, and that PowWow was tooclose to something along those lines.
But in this particular case, I can envision asmall change to the game that largely keeps the
PAL world experience the same, but doesn'tinfringe upon Nintendo's protections.

(37:33):
Patent number 7545191, alongside 3 relatedothers, were only approved in August, which
might help explain why it's taken this long forNintendo to announce its lawsuit.
The parent patent of the 4 divisional patentswas registered in 2021, and thus, as
translated, are legally effective againstPowWoworld, which launched January 2024.
Yes.
They have a big mosaic patent, presumably, thatcovers all the ways that RCS works or whatever

(37:56):
other game they would have done for thisparticular patent.
And then they take little bits out so that theycan sue like they did here against pocket pair.
You don't have to love it.
Nintendo is the big gorilla in the room on thisparticular story, but that's probably what
happened here.
And so the fact that they did make thesecontinuations or divisional patents, for these
particular reasons might well lead us tobelieve that these are the patents being sued

(38:19):
over, but we don't know for sure as part ofthis story just yet.
It is worth noting that PowWoworld does includea mechanic that involves throwing a ball like
object called a a Palsphere at monsters out inthe field to capture them, and this may prove
the key to the lawsuit.
Kurihara suggested Nintendo and the PokemonCompany filed the 4 divisional patents for
specific use in litigation against PocketPair.

(38:40):
As for PocketPair, it said it will begrudginglyinvestigate the patent infringement claims
while continuing to update Paleworld despitethe lawsuit and apologized to players left
concerned about the future of the game.
Now the one thing I wanted to say here is thatI do think that journalists had probably jumped
a little early on this, and I would be morefocused on trying to find the complaint
document itself than do this kind of analysis,but I can't begrudge them for looking for news

(39:05):
that people are clearly interested in, and thisis that type of news.
So I wanted to have that discussion with youhere in virtual legality because I do think
there are there are dangers here.
We could be talking about completely differentpatents, but the fact these did get continued
after PowWow World was launched, I think, issuggestive of the fact that these might well be
an issue.

(39:26):
Or as Eurogamer put it, it's it's exceedinglyplausible Nintendo crafted patent claims to
specifically target Palworld, says IP expert.
Developer pocket pair is currently being sued.
Well, that's just true.
And then we look at this article, and we seemuch the same as what IGN put forth.
Those particular claims are the ones at issue.
And then certainly in the last week alone,we've seen that Pal World launched on

(39:50):
PlayStation 5 and that it is not launching onPlayStation 5 in Japan.
Now this headline again probably goes onespeculative step too far for my comfort.
Nintendo lawsuit halts Pal World PS 5 releasein Japan suggests that a lawsuit was filed that
enjoins the release.
That isn't in fact the case.
This is essentially speculating that theexistence of the patent lawsuit that we're

(40:12):
looking at today is what caused PocketPair tonot release it on the PlayStation 5 in Japan,
which I think is probably a decently sourcedbit of speculation in general.
If you're accused of violating intellectualproperty rights, you don't wanna go the step
further and willfully violate those rights nowthat you're on notice that there might be a
violation out there.
Right, you have plausible deniability untilyou're sued.

(40:34):
Once you're sued, you've got an issue with,okay.
Now I'm just deliberately infringing yourrights.
And the way most intellectual property laws arewritten around the world, once you get in that
willful infringement kind of level, you havemuch bigger penalties, much higher exposure
than you would before that point in time.
So you don't have to have a mental state toinfringe on an existing patent, but if you do

(40:55):
have that mental state, things could be muchworse for you.
So I do think when we talk about whether or notPower World releases on PlayStation 5 in Japan,
it is probably the case that Nintendo saw thiswas going to happen and issued this particular
lawsuit in order to have this kind of result.
But I don't think we can make a definitiveheadline as DualShockers does here.

(41:15):
Now as I have criticized a number of articlesin the way that they've reported on this in
this video, I do wanna give credit wherecredit's due.
I've mentioned that I am not a patent lawyer,and I do think it is always useful to get
insight from specific lawyers and specificpeople with expertise in the stories that we're
talking about.
And PC gamer did, in my opinion, the best jobthat I've seen doing my research on this

(41:38):
particular topic in an article they called avideo game patent lawyer breaks down Nintendo's
risky power lawsuit.
It definitely feels like a punishment.
And I think you've seen now a number oflawyers, including myself, say it does in fact
feel like Nintendo is bringing this particularclaim against this particular company because
they do think that they flew too close to thesun, that they were trying to bank on the
goodwill that the Pokemon brand generates evenif they're not specifically violating a law on

(42:02):
that particular issue.
And they brought this patent lawsuit for thatpurpose.
But more importantly, and I will link this as Ido on the podcast page to this episode because
I can't link it on YouTube anymore becauseYouTube gets mad at outside links.
But if you go to the podcast link that will bea part of the description of this video, you
will see this link directly or you can look upthe headline I just mentioned.

(42:25):
This particular lawyer goes through a lot ofthe details here.
In fact, so much of what he says would bepertinent to our conversation that I didn't
wind up highlighting anything because it wouldhave been just all highlighted.
But PC gamer asks, we don't know what Nintendospecific allegations are yet, but what should
readers understand when they hear patentlawsuit as opposed to copyright infringement?
A lot of it hinges on the definitional conceptof what different forms of intellectual

(42:47):
property protects, says Kirk Siegmund, whichyou learned or or already knew earlier in this
video.
At the very highest level, there's thecopyright side of things, which is creative
works, books, music, movies, and that covers alot of the video game area.
That includes code.
The software code is essentially the same asthe words on the page in a book.
That includes pretty much anything creative,and it's intentionally quite broad.

(43:07):
A copyright lawsuit can and oftentimes is, berelated to a lot of different creative things
in the game space.
A patent lawsuit is different because what thatmeans is that someone has to have granted and
issued a patent in some country.
In this case, they're Japanese patents.
So at some point, Nintendo went to the patentoffice during the development of a video game
or console, and they filed the patent on someconcept they think is new, novel, and non

(43:29):
obvious.
Countries differ on their definitions, butgenerally speaking, it can't be abstract ideas.
It cannot be creative works.
It cannot be brands, which are covered bycopyright and trademark respectively.
It has to be unique to the patent system, andthey also had to convince the patent system in
Japan, America, wherever they did, that whatthey did is not only new, but would be non
obvious to what we call a person of ordinaryskill in the art.

(43:50):
So this is all stuff that we've talked aboutprior in this video, but it's important, and
this lawyer is doing a good job of breaking itdown.
In Nintendo's case, they've been prettyfastidious about making sure that a lot of
their concepts, where possible, make it intosome sort of patent.
There's this very famous one they did back withthe n 64 where they made what I jokingly call
the omnibus patent.
They put in everything from what thecontrollers look like, to how they operate, to

(44:12):
how the 64 operates, to how the processors in n64 operates, how Mario moves, how he goes from
world one world to another, everything in onebig patent.
And I think they only got, like, one set ofclaims out of it.
But the big thing to understand is that thislawsuit is dictated by the terms of the patents
they're asserting.
They cannot claim, oh, you knocked off the vibeof Pokemon.
You've gotta show that whatever is defined bythose Japanese patents they're asserting is

(44:33):
literally and directly infringed by PowerWorld,which brings us back to another picture that we
were just talking about.
So it's not like Nintendo's got a patent on thegeneral idea of catching monsters, says PC
gamer.
Right?
It's a fairly narrow scope when you'reasserting a patent.
Oh, absolutely, says the lawyer.
The big thing that people tend to mistake isthat they pick up these patents, they read
them, and they think, oh my god, this coverseverything.

(44:53):
In reality, what the patent covers is dictatedby what are called the claims.
And in the Japanese patents, the ones we thinkthey're asserting, the claims are quite
lengthy, and they link to the claims as part ofthis article.
We're gonna take a look at them because we'regonna see how hard they are to read even for
just non patent lawyers rather than humanbeings.
But the abstract is what gets people in a firstmode.
This is the aiming in a virtual spacedetermined by a second operation.

(45:16):
This is where you catch things with Pokeballs,but here's how it actually reads in law.
What is claimed is, 1, a nontransitory computerreadable storage medium having stored there in
a game program that when executed by a computerof an information processing apparatus causes
the computer to perform operations comprisingswitching between at least a first and second

(45:37):
mode based on a first operation input, and inthe first mode, determining an aiming direction
in the virtual space based on a secondoperation input and causing a player character
to launch in the aiming direction item thataffects a field character disposed on a field
in the virtual space based on a third operationinput and when the item is launched at a place
where the field character is disposed, givingan effect associated with the item of the field

(45:58):
character, etcetera, etcetera.
And this goes on and on and on, and it's verydifficult to to read to the layman, let alone
the the non patent attorney.
And there's a lot of things that can come upwhere if you bring this claim and you bring
this lawsuit, various people can say, well,that shouldn't have been granted because that's
too broad.
There is prior art.
Right?
The notion of throwing something at somethingin the field existed before, and so this patent

(46:19):
shouldn't have been granted.
The notion of capturing something and somethingthat you threw at it, yeah, existed before, so
this shouldn't have been granted.
There's a whole host of things that you canargue here when you are filing for patent in
any jurisdiction you are supposed to discloseto the patent office what the prior art is, but
reasonable minds can differ as to what is priorart on some of these invention and you can get
into fights over those things.

(46:40):
Certainly in the United States, I would expectto fight over various aspects of the claims
here.
I can't speak to that with peculiarity inJapan, but here we are.
And so the claims are very difficult to read.
They are the only bounds with which the lawapplies.
The abstract doesn't really matter for purposesof this, but there's a whole host of things
that, that affect the expression of what we'retalking about here.

(47:02):
Right?
How the system works, this is what theprocessor is configured like, just randomly
picking a claim in the 29 here.
When the fight against the field character iswon, set a limitation on movement of the field
character, etcetera, etcetera.
And while you can't have infringements that areonly partially, covered by the claims, you're
you're gonna start to get into arguments incourt about whether or not that's a full
infringement or not.

(47:23):
So the bounds in the law are set by theseclaims as granted by a patent authority in some
jurisdiction, and so Nintendo is going to haveto prove that the infringement happened on that
score.
But if we assume that they can, you still havedefenses that we talked about with respect to
even Tokyo and Japanese law.
How closely does Powell World have to resemblethe claims in the patent to qualify as
infringement?

(47:43):
Does Nintendo have to prove that there was anintent to infringe, or is it truly the case if
pal Powell World checks all these boxes that'sinfringement?
The lawyer says more or less the latter.
That's just what I mentioned.
Essentially, you don't have to have mens rea, astate of mind, to infringe to get into trouble
here.
Those claims are listed and are made public sothat if you do hit all those boxes, then you
can be sued for infringement.

(48:04):
It is a checklist as this lawyer says.
When a video game company is drafting a patentfiling, how much accounting for scope do they
have to do?
If you if your attempted filing is overbroad,will it just get thrown out, or is that
something that tends to shake out in lawsuitsafterwards?
Well, that's where it gets really interesting,says the lawyer.
Part of your job when you're writing thesepatents is to know if you go too broad, they'll
get destroyed in litigation.

(48:25):
They really should be destroyed at theregulatory patent office level, but that is not
always the case.
If someone can go find an example of somethingthat's prior art, they can prove that the
patent should never been granted in the firstplace.
If you go too broad, they can just unwind thewhole patent.
Your job to some degree is to weave thedelicate balance between going over overly
narrow, allowing everyone to freely knock offyour idea because you described it so narrowly

(48:48):
that the other ideas don't apply, and going toobroad where you don't get the patent at all.
If you're too broad, then you've given them apathway to make the patent go away, but you've
given them an opportunity to prove that it wasalready in existence because of that.
Now what you've touched on is very importantbecause at least in the United States, you have
mechanisms to go after these patents withoutthem enforcing them against you.
We have declaratory judgment actions to thecourt system.

(49:08):
We have what are called IPRs.
In both cases, you can go, hey, patent office.
You were wrong.
You shouldn't have granted that.
Let me prove why you shouldn't have.
As a fun example, someone once tried to assertagainst Blizzard or Blizzard tried to assert
against somebody.
Regardless, the IPR devolved into them citingDungeons and Dragons manuals at each other to
try and prove that, technically, this wholeconcept was not new because it was in there.
Now I have to say, in my experience talking topatent lawyers, discussing software patents and

(49:32):
other related intellectual property with myclients, it is never as fun as arguing Dungeons
and Dragons manuals in court or otherwise toeach other.
That is not the practice of law.
If you say, Rick, it sounds fun to argueDungeons and Dragons manuals, so I'm gonna
become a lawyer.
Don't do that, or at least don't do it becauseof that reason.
Don't say Rick told me to because I get toargue about Dungeons and Dragons.
That is unlikely to be your career path in thelaw if you do become a lawyer.

(49:56):
And that's where this might pan out.
If Nintendo asserted one of these patents andthey've gone overly broad, they may have
exposed themselves to Power World finding proofthat these concepts are not new.
Because this is drafted fairly broadly, even inJapanese, you can get clever about the games
you're looking at as prior art.
What references you're looking at, you canalways whip out Dungeons and Dragons because
that's always a good example of how charactersinteract in role playing games, and also it's
very, very broad.

(50:16):
You'd be surprised how often you can make thosearguments.
They've exposed themselves in a big way.
Now I disagree with this.
I don't think they are exposed in a big way onthis particular score, but I do think they're
exposed in the arena of goodwill.
Right?
If these patents come out and Nintendo istrying to squash what has proved to be a hugely

(50:36):
popular product in PowerWorld just because ofthrowing up a Pokeball out in the field or
something similarly kind of broad to the gamingaudience.
I think they do stand a chance of losing someof their goodwill and seeing this as a negative
overall, and I think that's one of the reasonsthey might have held back on what they're
actually suing over.
Is there a similar mechanism in Japanese patentlaw to invalidate a patent being asserted

(50:59):
against you?
Oh, yeah.
Not only is it a defense, but it's quitepowerful.
Unfortunately, I've not seen any newer data.
The last study I saw back in, I think, 2015said something like 70 or 80% of those cases
lost for in in validity reasons.
That means at some point, a Japanese case wasbrought for infringement and the court decided
or the jury decided that the patent should nothave been granted.
But in the Japanese courts, in the Japanesepatent office, it's quite a bit more permissive

(51:22):
than potentially in the United States.
So we've got a permissive patent issuance.
We've got potential issues with the way thecourts review the patents and their validity.
This person does say that he's he's seen a lota high percentage of those lost for invalidity
reasons.
I haven't seen that anywhere else, so we'lltake that with a grain of salt.
But, certainly, I like this article.
I like these quotes.
I like this discussion with this lawyer.

(51:44):
I'm very happy that PC gamer went to this stepto do this on what I think is an important
issue.
And so I will recommend that folks check itout.
You don't just have to take it my word for iton these topics.
I always recommend second, 3rd, 4th, 10thopinions on these things.
And so check out this PC gamer article becausethis lawyer does appear to pass the smell test
for knowing what they're talking about in myopinion.

(52:06):
So that being said, this has been virtualreality for today.
I wanna make sure I capture any membership,super chats, or anything else that I might have
missed while I was just talking about law atyou for an extended period of time.
And, also, if you wind up having any questionsor comments at this point in time, please do
let me know because I would love to get tothem.
I love having these conversations with all ofyou here in the space.

(52:28):
I hope this was helpful.
Again, I think PowerWorld will survive this,but it's important to note the difference
between copyright and patent.
It's important to note, exactly what is beingclaimed here at least in the broad strokes
because we can't talk about the specificpatents at this point in time.
Now that all being said, let's get to some ofthese comments.
So just because, thank you for being a memberfor more than 2 years.

(52:51):
Yay ho.
Yes.
If you are looking at my list of videos, Ihaven't made a video in this space for more
than a month.
It's been a long month for me here.
I very much appreciate everybody that haspopped into this space today.
We have over 200 folks at something like anhour's notice on a Friday going into your
weekend, so I really appreciate everyone beinghere.
It's just proven to be a very kind of longmonth here.

(53:11):
I don't know if you can tell just from thevideo camera now, but this is a completely
different setup.
I have a mic arm now.
I have a different desk.
I have a different location in my office eventhough I've tried to make it look mostly the
same.
And so I appreciate everybody that has bearedwith me through this period in time.
Thank you.
Thank you so much.
Derek Paxton, thank you so much for gifting aHogla membership.

(53:33):
Every bit of support to the channel helps memake these videos, and I promise to continue to
try to make them on topics of interest to meand to you on an even more regular basis than I
have been doing this summer in the past year.
I really wanna get back to it, and I reallyenjoy these conversations.
And just because, same thanks to you gifting 5o'clock membership that is super generous.
I really, really appreciate it.

(53:55):
Derek Thaxton, thank you for the 4 99 superchat.
I hope you didn't mean to leave a messagethere, but if you did, let me know, and I will
try to find it in the chat.
And thank you for becoming a YouTube member.
David Hollinger, $5 Super Chat.
Also, Nintendo is known for trying to patenteverything they do to the point that every game
company likely violates Nintendo patent.
That's certainly a part of this conversation.
Right?
One of the things I did look at with respect tovideo game patents in Japan in particular is

(54:20):
this kind of concept that many of the Japanesecompanies go go for this mosaic patent approach
to take everything that they concepted out inthe creation of a video game or console or
whatever it is that they're doing in the spaceand put out patents that cover every little bit
of it.
And then when they go to sue, make continuationto divisional patents or whatever they're
called in any given jurisdiction, and have themtargeted directly at what it is that they want

(54:44):
to sue over.
So you can feel however you like about thosethings.
I think overall, patents are a good idea.
I think overall, intellectual propertyprotection does help increase the creation of
intellectual property in the world, but thatdoesn't mean that they can't go too far.
That doesn't mean that maybe patents andcopyrights are held as monopolies for too long
for their owners.
There's all sorts of policy arguments you canget into on these things.

(55:05):
I don't blame anybody for complaining about thenemesis system being locked up or for Nintendo
doing this to pocket pair.
But I do think the specifics here areimportant, and we don't yet have those
specifics at this point in time.
So with that all said, I I do wanna capture anyother questions, comments, or things that are
going to be asked here in the questions orcomments section.

(55:25):
Sardinisms does say YouTube did not give me anynotice, and my phone is on do not disturb, so
it was sheer dumb luck I got here at all.
Thank you.
YouTube does not always give notice.
I do recommend to folks that like this contentand like this channel that you do check to make
sure you are still subscribed because YouTubedoes take you off my subscription list from
time to time just on its own recognizance.
Maybe because it thinks you're a bot, I reallydon't know.

(55:48):
But please do check that out if you aren'tgetting notices and you wanted to get them.
There's a lot of buttons to hit to make YouTubehappy on that score.
Again, if you are listening to this after thefact, leave comments, and let me know if
there's any questions I can answer in thatformat, and I will try to get to those when I
can.
As for the questions about is the squeaky doorstill squeaky?
Yes.
We have not otherwise oiled the squeaky door.

(56:11):
So if someone needs to come in and open thedoor, it will remain squeaky.
I appreciate the question.
Okay.
Witness says you're looking great and I envyyour focus.
Smiley face emoji, thumbs up emoji.
Well, thank you.
That is very nice of you to say.
Believe me, one of the blocks here in gettingthis video done was that I had so many things I
wanted to talk about that I was essentiallygetting lost in the weeds a little bit that I

(56:35):
didn't want to miss anything that I thought wasnecessary to have this conversation.
And if you think about things for too long, youwind up getting into a little bit of analysis
paralysis, and I think I did that a little bitwhile I was waiting for someone to come out
with what patents we're actually talking about.
So thank you very much for the kind words.
Sydney, thanks for the stream, Hogger.
I appreciate it.
Have a good weekend.

(56:55):
You too have a good weekend.
See you on the bit cast on Sunday.
Absolutely.
If you like to have these conversations, yougot a preview of this conversation on the bit
cast last Sunday where I talked about thisparticular issue for a very brief time at the
end of that episode.
I love talking about video games with mybuddies, Ains and Tie Guy Travis of IGN on this
channel and more importantly on the seasonedgaming channel.

(57:16):
So if you like these conversations, they're notall gonna be about law.
They're mostly about what we're playing, whatgames are coming out, and those kinds of
things.
Check out the bit cast, 11 AM EST on Sundays,and I will see you there.
I love the bit cast.
Love my friends.
We have great conversations, and I love it.
Jalaire, go lightly ask, wait.
No more law books.
Is it microphone stand?
No.

(57:36):
Look.
I can look at it's all bouncy now.
No.
This was my wife's idea.
So one of the things that I had to do this yearwas close my downtown Northville office because
essentially post COVID, people weren't reallythat interested in coming downtown, weren't
really interested in meeting with their lawyerrather than Zoom calling or phone calling them.

(57:56):
And so it just didn't make sense to spend thatrent money anymore, but it did mean that I had
a lot of office materials and desks and thingsthat had to be taken care of.
So we moved the office essentially here, andthen my wife said, well, let's fix up some of
this stuff and got me an arm, and then we'vegot another monitor here that I will eventually
be adding so that I can look at all of yourwonderful chats at the same time that I am

(58:18):
speaking all this legal nonsense.
But we'll see if we ever get up to that speed.
Sardanisms with the Hogla question.
Thank you.
And if you do wanna have your questionanswered, please do try to flag it with an ad
Hogla or a q and a question mark or somewhatsomewhere else that I can see it.
Of course, I'll try to answer super chats andmember comments, but I got a lot of chats, and
I don't always see everything, so please do letme know.
Sardism to ask, would changing the game designright after a lawsuit is filed not be used as

(58:42):
evidence of wrongdoing?
You would change it as part of your settlementagreement with Nintendo.
You wouldn't change it uniformly right now.
It would be evidence, well, it wouldn't beevidence of wrongdoing insofar as you can say.
I still didn't know that it was infringing.
I looked at your infringement claim and thendecided that I thought it was, and that might
be used against you, and you wouldn't makewanna make that choice at this point in time.

(59:04):
But you could say, hey.
Look, Nintendo.
We'll pay you this amount of money.
We'll change it to a, PAL Square, PAL cube, ifyou would prefer.
If that would make you happier, it'll be a cubeinstead of a sphere, and see what they do with
that and come to a settlement agreement thatsays we're gonna make these 6 changes.
We're gonna pay you this amount of money as acheck, and then all of this stuff is going to

(59:25):
be let go.
You're never gonna bring this claim for thisinfringement again, and we're gonna move on
with our lives.
We're gonna make money.
You're gonna make money.
And now you know what people actually want fromyour Pokemon games, and maybe you can get on
some of those design improvements as well.
Right?
And that's what would happen.
So, Emily, thank you for being a member foralmost 2 years.
Love some hope to kick off the weekend.
Yeah.
Well, we've got a Michigan game tomorrow.

(59:46):
Michigan not having as great a year as it didlast year, but still a fun team to watch.
And I love my weekends in the fall for thatreason.
We've also got the apple orchard open here inSoutheast Michigan.
If you're familiar with apple cider and spicedcinnamon donuts in Michigan, I would recommend
Parmeter's of Northville, but please do, checkit out if you're ever in the area because it's

(01:00:09):
what makes fall special here.
Papa says 2 monitors.
Yes.
Indeed.
Two monitors.
I know it would be crazy.
Right?
I think Rob has 4 or something, in his space,but he jumps all in, with this stuff.
Cactus asked some important questions on mybackground.
What are the boxes to the left of your headfrom your view?
Is that Eldritch Horror?
No.
That is a game from, Restoration Games calledunmatched.

(01:00:35):
I think I got I I don't know if it'srestoration.
No.
I think it is.
Called unmatched where you take things fromusually literary and public domain areas and
have them fight each other in tactical battleslike Achilles versus Sherlock Holmes or the
Invisible Man versus the raptors from JurassicPark, what have you.
And I really enjoy it.
They have a lot of different things to play as.

(01:00:56):
I think the the one that's new on the shelf asof this change in background is there's one
with Shakespeare and, like, the witches fromMacbeth that you can add to the fight, if
you're so interested.
And they all mix and match with each other, andI highly recommend that game.
Benjamin Luna asks, will this become aprecursor for other companies to now patent
certain game mechanics found in their owngames?

(01:01:16):
They already have been.
There are every game company has patents onvarious things.
Generally speaking, Nintendo is not going tocome after companies.
They're just out there doing things on theirown, because it would look bad for them for the
most part.
But I think in this particular case, so manypeople expected them to sue that they actually
had that statement that you saw the Pokemoncompany make, and Nintendo was looking into it.

(01:01:37):
And I would argue that what you saw from theanalysts that suggested Nintendo was irked by
the way the designs read to the populace isprobably accurate.
And if you irk a company like Nintendo and theyhave this big portfolio of intellectual
property already secured, they might well finda way to come after you.
I don't think it is as strong as people wantedwith respect to a copyright infringement claim

(01:02:00):
and getting pocket pair for stealing the designof Pokemon, but Nintendo seems to be motivated
by wanting to punish pocket pair on whateverscore they can find.
Emily says, oh, I love an apple orchard.
Great childhood memories.
I love apple orchards.
They're open here from, like, Labor Day to,like, Thanksgiving, and they're just wonderful

(01:02:25):
experiences.
They have little playgrounds.
They always smell fantastic.
I have apple cider.
I am going to go drink after this video isdone.
And now that we've talked about it a littlebit, I am more excited about it than ever.
But, yeah, they are great memories.
Newspin, I have a hard time thinking Pal Worldcan't win this.
Other games have such similar mechanics.
Temtem is turn based and has cards instead ofballs.

(01:02:47):
Wow has pet battles, also turn based.
So, again, remember, when we talk about thepatent itself, we're talking about the specific
expression of the idea.
It's not the concept of throwing something andcapturing it on a kind of broad basis.
It's being in a three-dimensional space, seeinga monster in front of you, and actually
affecting the throw of the ball, having it hitthe monster in space, having a little bit of an

(01:03:10):
animation to figure out whether you capturethat monster and then it coming into your
possession or not.
And certainly, that one small aspect of PalWorld is very similar to the way RCS and
Scarlet and Violet currently play, And thatmight be, a case where Nintendo could have a
good claim against them, but not the overallconcept of capturing monsters.
Right?
That's not what we're talking about.
That's what the lawyer in the PC gamer articlewas mentioning.

(01:03:32):
People think about it in the abstract likethat.
That is not as what protected.
Only the specific expression.
And in fact, even deeper than that, only theway the software actually comes up with how to
establish that expression, how the processorswork with each other, how the inputs from the
player interact.
And so you could change any small aspect ofthis, and if it's materially different from

(01:03:53):
what is in the claims under a Nintendo patent,then you are likely not infringing.
Now at this point in time, you may well beinfringing, and you'd have to agree to some
kind of settlement with Nintendo the courtwould approve of.
But it probably doesn't require materialchanges that would change how you experience
Pal world to get out from under the shadow ofmost of the stuff that we've seen rumored right

(01:04:14):
now.
Now there are other possibilities for patentsthat we don't know yet that could be a bigger
deal, but that's part of why I keep disclaimingthat we don't know what patents we're talking
about yet.
Alright.
And I think that's about it for questionspertinent to the topic at hand.
I said this in the Twitter message, but Iwanted folks to know that this will be

(01:04:34):
available in replay archive immediately afterthis video is over.
So please do check that out.
And, again, likes are very helpful.
Subscribes are very helpful.
Comments dislikes are even very helpful.
YouTube dislikes it when it knows you're aliveand not a robot.
So let it know.
Leave comments.
Share this video around with people you thinkmight find it useful, and I really appreciate
all of the support from everybody in thiscommunity every time I make a video.

(01:04:58):
So thank you so much, and I will see you on thenext virtual reality hangouts and headlines.
Who knows?
Maybe even the bit cast this Sunday.
Thank you again for being here, and I will seeyou on the next one.
Virtual legality is a YouTube video series withaudio podcast versions presented as commentary
and for education and entertainment purposesonly.

(01:05:20):
It does not constitute legal advice and doesnot create an attorney client relationship.
If you have legal questions about the topicsdiscussed, please consult your own legal
counsel.