Patenting Play: Video Game Mechanics and Intellectual Property

[1]

The video game industry is an entertainment behemoth, estimated to reach $213.9 billion in value this year.[2] Intellectual property issues within the industry are hardly new – the first patent dispute related to video games was a legal battle over Pong knockoffs filed in 1974.[3] A recent dispute between industry giant Nintendo and small independent publisher Pocketpair over creature capturing mechanics has reignited disputes over which mechanics ought to be patentable and which should not.[4]

The Alice-Mayo test is a framework for determining what prospective patents are eligible which arose out of two landmark Supreme Court cases - Mayo Collaborative Services v. Prometheus Laboratories, Inc.[5] and Alice Corporation v. CLS Bank International.[6] An invention seeking patent status must fall under one of four categories – process, machine, manufacture, or composition of matter.[7] Courts have also held that, even if an invention falls into one of the patent-eligible categories, it will not be patent-eligible if it is an abstract idea, law of nature, or natural phenomena.[8] However, even these exceptions have exceptions – categories of inventions which fall under the judicial exceptions, but may still be patent eligible.[9] The Alice-Mayo test is a two-prong test.[10] First, we check whether the invention falls under one of the judicial exceptions.[11] If it is, it may still be patent eligible if there is an "inventive concept" which amounts to significantly more than the judicial exception.[12]

Under the Alice framework, American courts have generally been hesitant to grant patents to game mechanics.[13] Since Alice, a broader range of innovations relating to software, and therefore video games, have been classified as “abstract ideas.”[14] In RecogniCorp, LLC v. Nintendo Co.,[15] a system used to create faces out of composite parts to save storage space was ruled to be patent ineligible because it was an “abstract idea.”[16] Attempts to patent broad game genres and mechanics have generally been struck down.[17] As part of the Nintendo v. Pocketpair controversy, the U.S. Patent and Trademark Office (“USPTO”) recently issued a non-final rejection to a patent related to mechanics allowing the player to “summon a creature and let it fight,” which it claimed that it sought to protect the core mechanics of its Pokémon franchise.[18] The decision was met with broad approval from the intellectual property law community. When the patents were granted, one prominent lawyer was quoted as saying that the original patents were “in no way allowable” and “an embarrassing failure of the United States patent system.”[19] There has also been strong backlash against the patents from within the industry, with one industry insider arguing that “these types of patents are too often used in bad faith.”[20] The concern is that large game studios will seek unenforceable patents in the hopes that they will have a chilling effect upon competitors.[21]

Some especially innovative mechanics have been successfully patented. One classic example is the Shadow of Mordor series “Nemesis system,” which creates procedurally generated characters with the capacity to remember players’ actions and change their behavior based upon said actions.[22] As compared to the broad patents discussed above, this patent was successful because it focused on the specific and technical implementation of the system.[23] The move drew fire from game designers, including Mike Bithell, who argued that, “like all games do,” the nemesis system had been “built on top of a whole heap of mechanics replicated from other games.”[24]

Patents in the video game industry have long been controversial, and their scope has been definitively tightened post-Alice.[25] The legal system will have to strike a delicate balance between protecting the rights of developers and avoiding stifling innovation in an industry so intensely characterized by learning from one’s competition.[26]

References

[1] Photo by Alexey Savchenko, A Black Game Controller on a Wooden Surface With Blue and Orange Lighting, Unsplash (Mar. 17, 2019), https://unsplash.com/photos/game-controller-on-wooden-surface-k4Akpt5-Sfk.

[2] See Michiel Buijsman, 2026 Global Games Market Key Numbers, Newzoo (Aug. 25, 2026), https://newzoo.com/articles/2026-global-games-market-key-numbers (forecasting the global game market to reach $213.9 billion in 2026, an increase of 6.1% from 2025).

[3] See William K. Ford, Copy Game for High Score: The First Video Game Lawsuit, 20 J. Intell. Prop. L. 1, 3 (Jan. 1, 2012) (describing Allied Leisure’s 1973 suit against Midway over a four-player knockoff of Atari’s Pong).

[4]  See Natalie Miller, Patenting Basic Mechanics of a Video Game Genre: Nintendo v. Pocketpair, https://northernkentuckylawreview.com/blog/patenting-basic-mechanics-of-a-video-game-genre-nintendo-v-pocketpair (last visited Oct. 21, 2026) (explaining that Nintendo sued Pocketpair in Japan alleging Palworld infringes its creature capture and summoning patents, and arguing that Nintendo’s U.S. patents on similar mechanics could discourage independent developers).

[5] 566 U.S. 66 (2012).

[6] See Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014); see also Anjali Dhamsania, Alice’s Patent Puzzle: Unlocking Patent Eligibility for Diagnostic Methods Within Wonderland’s Faulty Two-Step Framework, Vand. Univ. L. School (Jan. 25, 2025, at 00:00), https://law.vanderbilt.edu/alices-patent-puzzle-unlocking-patent-eligibility-for-diagnostic-methods-within-wonderlands-faulty-two-step-framework/ (introducing two Supreme Court cases which gave rise to Alice-Mayo framework).

[7] See 35 U.S.C. § 101 (2018); see also Alice Corp, 573 U.S. at 211; U.S. Pat. & Trademark Off., Manual of Patent Examining Procedure § 2106.04 (9th ed. Rev. Jan. 2024).

[8] See MPEP § 2106.04 (introducing three judicial exceptions to patent eligibility).

[9] See id. (explaining that invention is not immediately barred from patent eligibility because it falls under one of three judicial exceptions),

[10] See id. (outlining that Alice-Mayo test is a two-prong test).

[11] See id. (explaining first prong of Alice-Mayo test).

[12] See id. (introducing second prong of Alice/Mayo test – includes "inventive concept").

[13] See Kenneth R. Berman, Patrick J. Concannon, Emmanuel D. Filandrianos, Micah W. Miller, & Thomas J. Tuytschaevers, No Dice for Gaming Patent Under 35 U.S.C. § 101, Nutter McClennen & Fish LLP (Jan. 4, 2019), https://www.nutter.com/ip-law-bulletin/no-dice-for-gaming-patent-under-35-USC-101 (discussing In re Marco Guldenaar Holding B.V., in which Federal Circuit affirmed Board’s holding that method of playing dice game was patent ineligible because it recited the abstract idea of “rules for playing a game” and lacked inventive concept)

[14] See Michael K. Henry, Patenting Software and Beyond: A Guide to Understanding Alice and Its Impact, Henry Patent L. Firm (Feb. 14, 2021), https://henry.law/blog/understanding-alice/ (explaining that although Alice’s two-step framework made it much easier to find software and other computer-implemented inventions patent ineligible).

[15] See 855 F.3d 1322 (Fed. Cir. 2017).

[16] See Elliot C. Cook & J. Derek McCorquindale, RecogniCorp v. Nintendo–Alice Keeps Playing at the Federal Circuit, Finnegan: Prosecution First Blog (May 26, 2017), https://www.finnegan.com/en/insights/blogs/prosecution-first/recognicorp-v-nintendo-alice-keeps-playing-at-the-federal-circuit.html (explaining that court held claims for encoding and decoding composite facial images were directed to abstract idea and lacked inventive concept because they merely converted data from one form to another using generic computer components).

[17] See Berman et al., supra note 13; see also Forest A. Jones, Y. Leon Lin & Kevin D. Rodkey, Playing to Win: The Post-Alice Video Game Patent Landscape, Finnegan (Mar. 3, 2020), https://www.finnegan.com/en/insights/articles/playing-to-win-the-post-alice-video-game-patent-landscape.html (explaining that video game patent claims tied to specific technical solutions have done better than claims to abstract or conventional game concepts).

[18] See Wesley Yin-Poole, USPTO Rejects Nintendo’s Controversial ‘Summon Character and Let It Fight’ Pokémon Patent in Non-Final Ruling, as Palworld Legal Battle Rumbles On, IGN (Apr. 1, 2026), https://www.ign.com/articles/uspto-rejects-nintendos-controversial-summon-character-and-let-it-fight-pokemon-patent-in-non-final-ruling-as-palworld-legal-battle-rumbles-on (reporting that after USPTO Director ordered reexamination, USPTO issued non-final rejection of all claims in Nintendo’s patent based on prior art).

[19] See Lincoln Carpenter, 'An Embarrassing Failure of the US Patent System': Videogame IP Lawyer Says Nintendo's Latest Patents on Pokémon Mechanics 'Should Not Have Happened, Full Stop' , PC Gamer (Sep. 10, 2025), https://www.pcgamer.com/gaming-industry/an-embarrassing-failure-of-the-us-patent-system-videogame-ip-lawyer-says-nintendos-latest-patents-on-pokemon-mechanics-should-not-have-happened-full-stop/ (noting that video game patent lawyer Kirk Sigmon told PC Gamer that “these claims were in no way allowable” and “an embarrassing failure of the US patent system.”).

[20] See Ben Yamada, Nintendo and the Limits and Risks of Videogame Patentability, Milgrom Daskam & Ellis (Jan. 5, 2026), https://www.milgromlaw.com/intellectual-property/nintendo-and-the-limits-and-risks-of-videogame-patentability/ (quoting Larian Studios publishing director Michael Douse).

[21] See id. (noting critics’ concern that enforcing broad gameplay patents “could chill innovation, increase development costs for smaller studios, and give disproportionate power to companies with large patent portfolios”).

[22] See Jon Ryan, WB Games’ Nemesis System Patent Was Approved This Week After Multiple Attempts, IGN (Feb. 5, 2021), https://www.ign.com/articles/wb-games-nemesis-system-patent-was-approved-this-week-after-multiple-attempts (describing the patent as covering procedurally generated NPCs in a hierarchy that remember and respond to players’ actions).

[23] See U.S. Patent No. 10,926,179 (issued Feb. 23, 2021).

[24] See Andy Robinson, Warner Bros. Receives Criticism for Patenting Shadow of Mordor’s Nemesis System, Video Games Chronicle (Feb. 6, 2021), https://www.videogameschronicle.com/news/warner-bros-receives-criticism-for-patenting-shadow-of-mordors-nemesis-system/ (quoting game designer Mike Bithell).

[25] See Jones, Lin & Rodkey, supra note 17.

[26] See generally Patenting Play: Analyzing Recent Video Game Play Patents, Baker Botts (Dec. 2025), https://www.bakerbotts.com/thought-leadership/publications/2025/december/patenting-play (discussing how game companies seek gameplay patents to protect their creations while critics argue broad claims discourage innovation).