Warner Bros.’ Nemesis Patent: A Nemesis to Future Gaming Innovation

Warner Bros.’ Nemesis Patent: A Nemesis to Future Gaming Innovation

Warner Brothers Interactive Entertainment, publishers of the Middle Earth games series, have recently acquired a patent on the series’ signature mechanic: the Nemesis system.^[1] The patent goes into effect on February 23, 2021 and lasts 15 years, should Warner Bros. continue to maintain it.^[2]

The Nemesis system is an elaborate gameplay mechanic which tracks player interactions with non-player characters (NPCs) and procedurally generates rivalries with those characters.^[3] The system has often been cited as the reason for the Middle Earth series’ success.^[4] Because of the series’ success and the positive reception around the Nemesis system, Warner Bros. has been trying to patent the system since 2015 to no avail until February 2021.^[5] The efforts—and eventual success—of Warner Bros.’ patent have been met with harsh criticism from game developers and players. This criticism has primarily been focused on two aspects of the patent: its scope and its existence at all.

Upon the Nemesis system patent being secured by Warner Bros., criticism of the patent’s breadth immediately followed. The language of the patent is broad, covering many mechanics that are common in modern games, leaving other developers and publishers with the concern of potential legal battles in the future, should they make something vaguely resembling the Nemesis system.^[6] In fact, the USPTO seemed to share some of these concerns. In Warner Bros. many failed attempts to secure the patent, the UPSTO cited many reasons, including the specificity of the language (or lack thereof) throughout the patent.^[7]

The developers concerned with the broad language of the patent, fearing that future games may put them at the receiving end of a lawsuit, will likely stay far away from anything resembling the nemesis system to avoid a situation like this.^[8] This is especially harmful to indie developers and publishers, who do not have the resources of bigger companies. Not only is this bad for developers who wanted to build and expand on the idea of the Nemesis system, but for fans as well. With only Warner Bros. making anything resembling the system, many gamers fear that the many potential uses of the Nemesis system will never be realized.^[9]

While many developers, publishers, and gamers have been critical of the patent, others have defended it by pointing to other patents in the gaming industry, like the unique ball-rolling mechanic of the Katamari series.^[10] This does not address the concern of players and developers who fear that patents stifle innovation. No game since the grant of the Katamari patent in 2008 has made anything resembling the ball-rolling mechanic of those games. This is surprising considering the Katamari series’ popularity, which likely would have spawned countless similar games were it not for the patent.^[11] You might be asking yourself why this is a bad thing. I mean, the developers of Katamari worked hard to create a unique and successful idea, so why should other developers be able to capitalize on its success? This brings us to the second criticism of the Nemesis patent, and patents in gaming in general: their existence.

 

In the gaming industry, building off of predecessors is common. In fact, we would not have some of the most popular franchises of all time, like Call of Duty, had it not been for Medal of Honor’s gameplay which Call of Duty modelled itself on.^[12] This is why there is such strong pushback on patents in gaming, and a fear that companies like Warner Bros. patenting gameplay mechanics will lead to a broader trend of patents in the industry.^[13] If patents become a trend, developers will likely not be innovate using existing systems.^[14]

Ironically, the Nemesis system itself was created by building upon widely popular systems of procedural generation in games.^[15] Attorney Richard Hoeg writes that “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.”^[16] Hoeg also notes that legal action seeking to invalidate the patent might have a significant chance of success, yet for most other developers the costs of these potential legal battles will likely be enough to upend their livelihoods.^[17]

In the future, the USPTO should be more careful in its granting of patents to large gaming companies, especially when those patents are on mechanics so similar to those already in existence. In the meantime, gaming companies should resist the urge to file patents on their mechanics or this may create a slippery slope that severely hinders innovation in gaming.