Joshua Weigensberg

The videogame Palworld caused a sensation when it released to early access in January 2024. It immediately garnered attention from the gaming community and quickly built a strong following of players. As of September 2024, it has sold over 25 million copies. However, commentators quickly observed that its core theme of capturing fanciful creatures and its character designs are reminiscent of Nintendo’s Pokémon series. Almost immediately, it was labeled “Pokémon with guns.” Over the past nine months, the gaming community wondered: “Will Nintendo sue?”

Last Wednesday (September 18), we got our answer. Nintendo and The Pokémon Company filed a patent infringement lawsuit in the Tokyo District Court against Palworld’s creator, Pocketpair, alleging that Palworld “infringes multiple patent rights.”

Much is unknown about this lawsuit at this time.  We (and the press) are largely relying on the parties’ statements in press releases. This is a case that we will be watching closely over the coming weeks, months, and potentially years alongside the rest of the gaming community. We expect that details about Nintendo’s allegations will soon emerge. However, we have three immediate questions:

1. Which Patents Are At Issue?

At the present time, it isn’t clear which patents are actually at issue in the suit. However, Japanese legal commentators are suggesting that the patent at issue is Patent No. 7545191, which is described as follows:

“Aiming a capture item (Poké Ball) at a character placed on the field (Pokémon), releasing the capture item in a direction determined by player input, judgment of whether capturing is successful or not upon contact between the capture item and Pokémon, and changing of the Pokémon’s status to 'owned by the player' when capturing is successful. In addition, the patent also covers the mechanic of having capture probability displayed to the player, regardless of whether it uses colors, graphics or numbers.”

2. Why Patent Law?

The discourse around the similarities between Pokémon and Palworld tended to focus on the similarities in character designs. Commentators created elaborate, multi-part social media posts comparing the designs on a granular level. Others pushed back, pointing out the similarities between certain of the Pokémon characters and characters appearing in games and other media that predated Pokémon. Those discussions implicated copyright issues primarily (and, to a lesser extent, trademark issues as well).

As we have previously written, U.S. copyright and trademark law both provide substantial protections for characters. However, proving one’s rights in any particular character in court can be challenging and unpredictable. Some courts have imposed an originality bar for establishing protections for characters that is, at least arguably, higher than the “modicum of creativity” standard from the Supreme Court’s decision in Feist. Readers may be surprised, for instance, to hear that even the iconic characters from the classic fighting game Street Fighter II were largely deemed unprotectable.  See Capcom U.S.A., Inc. v. Data East Corp., 1994 WL 1751482, at *14 (Mar. 16, 1994) (“[V]ery few of the characters and moves in Street Fighter II are copyrightable[.]”).

Yet Nintendo’s filing does not appear to include a copyright component. Instead, it is limited to patent claims, and seemingly patent claims relating to a specific game mechanic. Why?

Firstly, Nintendo may have felt that it did not have a strong enough copyright claim. Many Pokémon characters are fanciful versions of real-life animals (take a guess what “Krookodile” resembles), which could cut against its claims. Moreover, many fans pointed out the similarity between Pokémon designs and certain designs in the “Dragon Quest” series by Square Enix, which debuted in 1986 and thus predates Pokémon by a decade.

Secondly, Nintendo may have been concerned that a court loss on a copyright (or trademark) claim could undermine its ability to enforce its enormously valuable IP more generally. Put another way, it may be because of the uncertainty of the outcome of such a suit that Pokémon and Nintendo are apparently advancing a theory of patent infringement rather than copyright infringement. Of note, the Pokémon Company has previously sued, and recently won, on a copyright theory against a Chinese company alleged to have copied visual assets wholesale and without modification from Pokémon media. We have not seen a similar accusation against Pocketpair.

Nonetheless, the approach being taken against Pocketpair does beg the question as to whether Nintendo would have filed a patent claim against another game on similar grounds if that game was not so reminiscent of Pokémon in its character design, color palette and overall design. Would, for example, Nintendo have taken action against a game with a grimdark, Dark Souls-type aesthetic?

We should also note that we are (obviously) not Japanese-qualified attorneys, and it is possible that Nintendo’s filing could reach or be amended later to add additional claims.

3. How Will the Fans React?

This lawsuit is set up to be one of the most scrutinized in entertainment over the next few years and may end up becoming the highest profile videogame lawsuit of all time. This controversy has already been playing out in the court of public opinion for months, and scrutiny will only heighten after this week’s filing. Pokémon is one of the most successful entertainment franchises in history, and we can expect Nintendo to proceed aggressively.

At the same time, when dealing with a competing game as popular as Palworld, there is a risk of backlash from the gaming community to perceived overreach. This risk is especially acute here, where Pocketpair is a relatively new, independent studio and Nintendo is one of the most successful, formidable video game companies of all time. Expect to see a lot of references to “David and Goliath” as the case develops.

Moreover, Nintendo has received scrutiny for the quality of recent Pokémon games, which have been labeled rote and unambitious by certain factions within the fanbase. Palworld was celebrated by those same players for its perceived innovative iteration on the concept, who also hoped that Palworld’s success would push Nintendo to improve its own offerings. Unsurprisingly, Palworld fans have responded negatively to the lawsuit, perceiving it as an effort to stifle competition and as having a possible chilling effect. Nintendo will thus be fighting a battle on two fronts – in the legal courts and in the court of public opinion. With Nintendo about to unveil its new Switch 2 console, the stakes are high.

We will be continuing to monitor the Pokémon-Palworld conflict with great interest.