Warner Brothers Studios has secured patent protection for Shadow of Mordor’s Nemesis System, sparking a debate about the role of Intellectual Property in the gaming industry.
Shadow of Mordor’s Nemesis System
Middle Earth: Shadow of Mordor is a critically acclaimed open world third person action game developed by Monolith Productions and published by Warner Brothers Interactive Entertainment. The game takes place in Tolkien’s Middle Earth and puts the player in control of the ranger Talion as he faces off against vast AI controlled orc armies.
The game is noteworthy for its implementation of the “Nemesis System” which aims to provide personality and depth to the AI controlled orc enemies faced by the player by allowing the enemies to remember their past encounters with the player (and other orcs) and adjusting the orcs rank, power, and appearance within the army based on these interactions. For instance, the player may die at the hands of a lowly grunt and return to the area to find that the grunt has been promoted within the orc army, and now has underlings at his command, making him more powerful. Other orcs in the army may respond to the newly promoted orc with fear or awe for having killed the player.
Although the game was released in 2014, Shadow of Mordor is in the news again because earlier this month Warner Brothers Entertainment secured a patent for the Nemesis System, sparking controversy in the gaming industry.
The Nemesis System Patent
Warner Brother’s Patent No. 10,926,179 is titled “Nemesis characters, nemesis forts, social vendettas and followers in computer games.” The patent is broadly directed to controlling game events involving a player, a first non-player character (NPC), and a second NPC. Specifically, predefined events between the player and first NPC result in changing parameters of the second NPC. Some examples of changed parameters include the appearance of the NPC, behavioral personalities of the NPC, and controlling the combat ability of the NPC.
The application endured an unusually long examination process receiving six rejections over five years. Interestingly, the prosecution process focused heavily on adjusting attributes between players in multiplayer games and not adjusting attributes between NPCs in single player games. The prosecuting attorneys were often able to overcome the cited references by arguing that they do not disclose adjusting parameters of a second NPC based on interactions between a player and a first NPC.
For example, some key pieces of cited art included Iwano, Suzuki, and Machida. Iwano (US2014/0213356A1 assigned to Square Enix) was cited for disclosing a video game where multiple players partake in events, receive rewards for participating in events, and the outcome of the battle is displayed including the characters, rewards, and values of the characters. Suzuki (US2015/0238862 assigned to GREE) was cited for purportedly disclosing a group gameplay setting where multiple players can participate in a battle, and the abilities of the individual players may be altered based on the conditions of the battle. Machida (US2004/0259613A1 assigned to Universal Entertainment Group) purportedly discloses displaying parameters of an NPC, such as health, based on whether the player character is involved in an event, such as a battle with the NPC. Interestingly, the Examiner also cited a Crusader King’s game manual for teaching NPC interaction, which the prosecuting attorneys distinguished as being directed to a strategy game that is not analogous to a game where a player controls a specific avatar.
While the patent system is meant to help inventors protect their inventions and spur innovation, many critics in the gaming industry feel that this newly issued patent is overly broad and is an affront to technological innovation that will prevent other would-be developers from crafting gameplay systems that utilize NPCs that learn from past interactions with each other and players.
A Risk of Broad Patents
Patents provide an important and meaningful way for an inventor to protect their innovation and prevent competitors or copycats from counterfeiting that idea. However, there is always the opportunity for market actors to become too greedy when carving out the boundaries of that protection. In some cases, companies will pursue broad claims that cover not only their specific innovation but attempt to broadly carve out an entire field of technology to prevent others from continuing research and development in that field, which can inhibit innovation.
While these attempts to secure overly broad protection can sometimes be successful, they are often a risky gamble. Overly broad claims can be valuable because they encompass many types of technology in addition to the specific innovation the inventor sought to protect and can discourage competitors from continuing research and development down that path. However, this breadth is a double-edged sword — overly broad claims may also encompass prior art technologies that already existed when the patent was filed, making the patent invalid. This risk is partially due to a disparity in resources available to Patent Examiners (responsible for examining patent applications prior to issuance), compared to the resources available to potential defendants attempting to invalidate issued patents they’ve been accused of infringing.
The present situation is no different. The patent’s claims are broadly directed to adjusting the parameters of a second NPC based on predefined events between a first NPC and a player. However, most of the art identified and cited by the Examiner was in fact directed to multiplayer games and adjusting parameters between players – not single player games as Warner Brothers’ attorneys noted when overcoming these rejections. While possible, it is unlikely that the Examiner in this case identified all of the most relevant prior art, introducing a risk that the issued patent’s claims encompass unidentified prior art, and are therefore invalid. Patent Examiners have limited time to spend searching for prior art when examining the numerous patent applications on their dockets. In contrast, potential defendants are not so limited and will often expend significant resources scouring all possible sources to find the most relevant prior art if faced with an infringement suit to invalidate the subject patent.
The risk of obtaining an invalid patent can be mitigated with proper searching for relevant prior art before filing a patent application. Patent attorneys often work with their clients to investigate the prior art landscape before filing an application in a new technological space to avoid such a scenario. Perhaps Warner Brothers has commissioned their own prior-art search to assure themselves that no invalidating references exist. However, this would appear unlikely because applicants are required to disclose all known relevant references to the Patent Office during examination. In this case, Warner Brothers did not disclose any references it considered to be relevant during the examination process.
Securing patent protection for the Nemesis System is a major achievement for Warner Brothers after five years of examination. However, as the gaming industry has noted, the claims of this asset are quite broad. A brief review of this asset’s breadth and prosecution history suggests that the patent may be susceptible to invalidity attacks if asserted against potential infringers.
About the Author
Scott is an intellectual property lawyer and registered patent attorney. Scott’s intellectual property practice includes patent prosecution, trademark registration, and post-grant proceedings before the Patent Trial and Appeal Board, such as inter partes review. Scott has extensive experience preparing infringement opinions and conducting validity analyses of competitor portfolios.
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