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DISCLAIMER: The article below isn’t “legal advice” and is provided for entertainment, educational, and informational purposes only.
A few days ago, the United States Patent and Trademark Office (USPTO) finally agreed to grant Warner Brothers Interactive Entertainment a patent on its “Nemesis” system – a procedural engine which Monolith Entertainment, a WB Games subsidiary, used to bring the world of Middle Earth to life in 2014’s Shadow of Mordor and 2017’s Shadow of War.
While patents are not an unusual part of the research, development, and invention creation process at many technology companies, they are a bit more unusual in the gaming industry, where developers and publishers from the AAA behemoths down to the one-person indie studio are constantly mixing, remixing, and reimagining the various evolutions in gameplay that have led us to gaming in the year 2021.
So it was no surprise when developers across the games industry leapt to criticize the move, with some calling it “gross” and others…using more colourful language. But as is so often the case with legal questions, it’s all a bit more complicated than that.
To begin with, it is important to understand the foundational principles of intellectual property law in the US. (Note: You don’t have to agree with them, but knowing them will help you understand how and why businesses and the USPTO do what they do.)
At the most baseline level, receiving a trademark, copyright, or patent (the three primary forms of intellectual property) in a specific thing means that you have the exclusive right to control how that thing is used – an exclusive right that the courts will enforce on your behalf against someone who uses your intellectual property without permission (what the law calls “infringement”).
Why does the law provide for such exclusivity? What is to be gained? The answer to that question can be found in Article 1, Section 8 of the US Constitution, in which Congress is given the power to secure “to authors and inventors the exclusive right to their respective writings and discoveries”. Why? Congress has been given this power in order to “promote the progress of science and useful arts”.
In other words, the framers of the Constitution believed that the best way to ensure continued acts of creation, that books would continue to be written and machines continue to be invented, was to ensure that the author or inventor would receive all rights associated with their creation – that they would be incentivized by the profits they could make (either themselves or by licensing their rights to another).
And the logic of that has not changed in the intervening 200 odd years. You get more of what you incentivize and less of what you punish. The problem, then, with some of the current commentary is that it effectively looks at the situation backwards.
“Is Nemesis really a new invention? Isn’t the use of procedural generation for Nemesis pretty obvious based on what has come before? Don’t other games basically do all or parts of Nemesis already?”
It’s “gross” because I can’t build off of it. It’s terrible because they want to lock it in a drawer.
While those descriptions may well be accurate (and such ire understandable coming from consumers or fellow developers – each of whom are eager to get more access to the “invention” after it was brought into existence), it does not consider the decision-making *prior* to creation, but only after the fact.
Would WB Games be less likely to devote the time and resources to creating a system like Nemesis if it could not profit off its licensure or exclusivity at a later time? Would the next company?
Reasonable minds can differ on that score, of course, and gaming, in general, has worked quite well without many patent-protected concepts owing in part to natural copyright protection and the often high cost in implementing another’s concept in any event, but there is no question that considering the “pre-invention” part of the process is a necessary part of determining how one feels about the WB Games move overall.
Which isn’t to say that the general value of a patent is the end of the story or that WB Games’ decision to seek protection here is not worthy of criticism. (I did say this was all a bit “complicated”.)
In addition to the complaints one may harbour against the overall intellectual property regime as applied to gaming, there are questions of whether a patent should even have been issued here in the first place.
WB Games pursued the patent over the Nemesis system for the better part of a half-decade, continuing to get its request denied by the USPTO, over and over again. Why? Well you can see for yourself (Serial No. 15/081,732), but suffice it to say, the USPTO apparently had many of the same problems that gamers have had with the news.
Is Nemesis really a new invention? Isn’t the use of procedural generation for Nemesis pretty obvious based on what has come before? Don’t other games basically do all or parts of Nemesis already?
One examiner even went into a multi-paragraph comparison between the Nemesis system and PC-gaming stalwart Crusader Kings, explaining how the claims WB Games made about the Nemesis System had already been implemented in other corners of gaming. (I have to admit, I had never seen a Crusader Kings gameplay synopsis in a USPTO filing before.)
“Despite how one feels about the value (or lack thereof) of patents in general, the end result in this case will likely be a chilling effect on many developers who do not wish to see their livelihoods upended by a WB Games cease and desist letter”
All of these points are important because US patent law does not allow for a patent to be issued for something that is known by the public before the request, or which is an obvious evolution of an existing idea.
But the fate of the Nemesis system changed in the middle of last year, when, with minimal revisions to the requested patent (and after issuing what was initially framed as a “Final Rejection”), the USPTO changed their tune (and rather suddenly at that).
The final approved claims are, as has been noted in other circles, very broad indeed, and effectively make exclusive to WB Games the concept of…a player-avatar’s interaction with an NPC affecting the parameters of a second NPC (among other things). Such a broad patent is eminently challengeable of course, but not before paying a significant amount in legal fees.
Which leaves things in an odd position. WB Games will be issued a patent which will provide it with exclusive rights to a system which on its face appears to describe most games on the market today and the nature of which was contested by the USPTO as effectively “already in the marketplace” for years.
Despite how one feels about the value (or lack thereof) of patents in general, the end result in this case will likely be a chilling effect on many developers who do not wish to see their livelihoods upended by a WB Games cease and desist letter, even if a legal action seeking to invalidate the patent might have a significant chance of success.
Is it gross? I’m not sure I’d go that far. But it certainly raises questions for the continued evolution of the gaming industry. In the end, the real “Nemesis” might just be a USPTO out of its depth and all too capable of being cowed by a well-resourced enterprise. Time will tell.