A videogame IP lawyer claims Nintendo could have planned its Pocketpair suit before Palworld was released.

Nintendo released a press release last week announcing that it had filed a patent suit against Pocketpair, the developer of Palworld. The announcement, given Nintendo's reputation for applying excessive legal pressure, led many to wonder when, in the eight-month period since Palworld was released by Nintendo they might have started their litigation gears. Kirk Sigmon of Kirk Sigmon Patent Law Firm believes that Nintendo may have planned its patent lawsuit even before Palworld launched.

Nintendo has not made public which patents they accuse Pocketpair to infringe, but it is generally assumed that Nintendo's lawsuit is based on patents Nintendo filed during the development of the 2022 Switch game Pokemon Legends Arceus. During an exclusive interview with PC Gamer, I asked Sigmon about the changes, continuations and divisional applications made to those patents according to US and Japanese databases.

A patent continuation (called a divisional application by the Japanese) allows a patent owner to file for additional intellectual property protections and patent claims on the concepts covered in the original patent. "Let's assume a filing describes a Poke Ball and rideable objects. If the original claims covered only throwing a Poke Ball they will file a divisional and say "We are now going to draft claims that relate rideable objects." It's a bit different, but that's what we're going after," Sigmon explained.

Sigmon explained that divisional applications give the patent holder, in this instance Nintendo, the opportunity to optimize their patent claims definitions for a future lawsuit assertion. If you're Nintendo, and you see that your competitors are about to release a similar product to one you own, you can draft divisional patents ahead of time to give yourself the best tools to sue them.
In Other Other Words, divisional Patents give you the chance to play 4D Chess.

"What is very common and why a number of Japanese patent lawyers suspect that [Nintendo] is trying to assert divisional patents in this lawsuit is that, as you go along with the process and file divisionals and continuations or whatever, you draft claims that are more and tailored towards assertion," Sigmon explained. "You'll know what you're entitled to and what you're not, and you can also draft claims that are targeted at the person you intend to sue."

Looking at the dates of Nintendo's Japanese Patent filings, I noticed that Nintendo had filed a written modification for the original patent on 10/11/2023, followed by a divisional application 4/12/2023. Both filings would have been made between the 2022 release date of Pokemon: Legends Arceus, and Palworld's launch in January 2024. These filings would have been made after Pocketpair released Palworld gameplay footage that showed catching and riding mechanisms, similar to the Summer Game Fest video from June 2023. This meant Nintendo had theoretically time to refine its claims to avoid any perceived similarities.

In our interview I asked Sigmon if Nintendo could have been sculpting their patent filings to anticipate an eventual lawsuit against Palworld.

Sigmon replied, "Yes, if they have good patent lawyers and good communication within the company." "Sometimes, the truth is that the patent attorney doesn't get the chance to talk to the developers much because they are busy or difficult to reach. If they were aware of Palworld or concerned about it, I wouldn't be surprised if the developers went back to their patent attorneys and said, "We want claims we think can handle them."