On February 5, 2021, IGN reported that Warner Brothers Interactive Entertainment (WB) secured a patent for the Nemesis system used in their Lord of the Rings “Shadow” games (Shadow of Mordor / Shadow of War). At first glance this might seem like nefarious attempt to lock down a video game mechanic, potentially using patent law against competitors (and squashing innovation), but I believe that view is shortsighted.
Let’s get this out front: There are a plethora of problems with the United States patent system. It’s fair to say that the debate over what a patent is, and how a patent should be enforced, should continue. This article is not trying to make the case that the US patent system is “fine”. In the specific case of the Nemesis system patent, I’m not concerned about WB using it as a legal hammer against other video game companies. Here’s why:
The patent is relatively detailed and specific.
This patent has been in and out of approvals for several years. According to reports previous iterations were too similar to other video game patents and thus the patent office was hesitant to grant a patent. How does a company/developer remedy that situation? They add enough details to the patent to make sure the claim is targeted and specific.
I understand the complaint that the Nemesis patent’s first claim reads like an interaction with an NPC (non-player character) that changes parameters, but that’s not where claim 1 ends. Claim 1 has 17 sub-claims under it that further define what claim 1 is trying to accomplish. A reader can’t analyze claim 1 without diving into the details of the sub-claims, many of which get into specifications of the Nemesis system. Additionally, there are a multitude of documents that go into the functional details of how the Nemesis system functions. All of these details and documents are a critical part of narrowing the scope of the patent. The patent isn’t a broadside against the industry. It is, compared to other video game patents, rather well defined and specific in scope. The same logic can be applied to claim 19. As in the case of claim 1, claim 19 cannot be examined without considering the sub-claims that define it. The biggest “problem” with the Nemesis patent is potentially claim 36. That claim, unfortunately, does not contain a chain of sub-claims in which to more narrowly define it. Upon reading claim 36, it is my understanding that c36 is a summary claim that exists based on the fact that previous 35 claims are present. Essentially, claim 36 does not exist without the lead of clams 1-35.
Richard Hoeg, of the Hoeg law firm, stopped short of calling the Nemesis patent “gross”. He is critical of the patent as it stands, but isn’t ready to declare the sky is falling.
Right or wrong, organizations often build a “warchest” of patents.
Did you know that Bioware has a patent on a conversation system? Yes, you read that correctly. Bioware patented the conversation wheel from Mass Effect. The patent is technically known as “Graphical interface for interactive dialog” but let’s real, it’s a conversation system. As far as I know, that patent hasn’t been utilized in any legal manner. EA (Bioware) isn’t the only game company holding onto patents from features in their games, and they won’t be the last. The references in the Nemesis patent alone point to a plethora of patents, many of which are from the games industry. It is true, unfortunately, that various game companies have used their patent(s) to sue competitors for copying their games, but the occurrence is exceedingly rare. When I went to research this topic, I found that most lawsuits in this case were used when the game in question was extremely similar to another game.
The most infamous patent lawsuit is the Crazy Taxi “yellow arrow” case, filed by Sega against Fox & EA. In the suit, Sega claimed Simpson’s Road Rage was (essentially), a copy of Crazy Taxi, thus violating their patents. Reviewers of Road Rage also made the same observation. It is reasonable to argue that if Simpson’s Road Rage wasn’t a near copy of Crazy Taxi, the lawsuit likely would not have happened, and the patents would not have come into play. The case was settled out of court.
The business of gaming isn’t like the cell phone patent wars. The majority of studios keep to the work of building games, and avoid actively attacking their competitors with patents. That said, there are still a plethora of video game patents out there. If that’s the case, why are video game companies creating patents, especially if they aren’t planning to actively use them to slow their competition?” The answer lies in the old saying: Mutually Assured Destruction.
It is unlikely that Warner Brothers will use their patent against a competitor. It’s also unlikely that a competitor will bring one of their patents against Warner Brothers. Patent lawsuits are not simple cases, and juries often hand down conflicting conclusions from case to case. This complexity is made more confusing by the fact that software litigation is difficult, making it harder to justify a jury being involved (they still are). This mess-of-a-process brings us back to the original point of mutually assured destruction – if someone fires the first shot, both companies will have to deal with multiple lawsuits. Video game patent lawsuits are rare as it is, hopefully it stays that way. (Note: Previous to writing this, I had several conversations with industry personnel. They confirmed that M-A-D is likely one of the core reasons for creating the patent.)
The End Result Is (Probably) Silence
There are other aspects of patents that I’m not going to get into today:
- Employee recognition
- Value creation
- Patent invalidation by the defense (albeit difficult to do)
As a general statement, companies don’t want to be involved with a patent dispute. I find it unlikely that WB utilizes the Nemesis patent at all, unless there is a necessity to do so (blatant copy, self defense). The patent itself is detailed (enough) to make it relatively narrow. The end result of the Nemesis patent is most likely, silence.
At least it’s not a patent on the placement of a button.
Do you have some thoughts on the patent process? Do you disagree with Warner Brother’s decision to create the patent? Let’s discuss on Twitter.
The top-most image is clipped from https://www.shadowofwar.com/about/.
