The Medium by Bloober Team is a 2020 game known for its unique “Dual-Reality” mechanic, making full use of modern processing powers to generate two worlds at the same time. Bloober Team is now trying to extract the most use from this mechanic with its patent, preventing Dual-Reality from being used in a variety of video game genres in the future.
Despite the multitude of protections that video games are guaranteed through copyright and trademark law, some video game developers receive patents on mechanics within the game itself. What these developers fail to realize is that this provides them with no benefit and may potentially hurt them instead. This blog post focusses on how patenting major video game mechanics of AAA games (“big-budget” games), is not in a company’s best interest.
To understand why these patents hurt video game companies, we can compare the video game industry to the pharmaceutical industry, which is sometimes called the “poster child” of the patent world. Patents are considered one of the most important parts of the pharmaceutical industry because research and clinical testing for drugs is extremely costly, but once the drugs are approved by the FDA, they are relatively easy to produce generic copies of. Additionally, patented drugs have a specific use that fills an active niche on the market, one which no other currently available drug can satisfy. Without the patent system or some other means to ensure exclusivity, pharmaceutical companies would have significantly reduced profits generated by the market. These companies therefore spend significant amounts of money keeping competitors out of the sphere for years or even just months in order to maximize profits from the drug.
In contrast, the AAA video game industry is inherently derivative. While in the pharmaceutical sphere, if A and B are drugs that perform the same function, a purchase of drug A inherently prevents similar drug B from being purchased. For video games, the purchase of game A often leads to game B being purchased. This is because games are often characterized by the similarities they share to other games. Entire genres are created out of the unique mechanics seen in older games, leading to categorizations like “Metroidvanias” (a portmanteau of Metroid (1986) and Castlevania: Symphony of the Night (1997)). This is beneficial for games because it lets players know what to expect. Players who enjoyed one Metroidvania will often enjoy another Metroidvania due to the similar characteristics. A recent example of this is the indie game Cult of the Lamb, which received increased attention when it was compared to the other popular games Hades and Animal Crossing.
So what happens when a game like 2014’s Middle Earth: Shadow of Mordor by Warner Bros Interactive Entertainment (“Warner Bros”) patents its unique Nemesis System (a game mechanic that’s considered to be incredibly innovative, featuring a hierarchical system of enemies and an elaborate variety of interactions with said enemies to create unique storylines for the player)? If this was a pharmaceutical, this game would fill a specific niche that people need or at least strongly desire, and Warner Bros would have exclusive rights to this type of game until 2035. But the problem is, video games are interchangeable. While there could have been a genre titled “Nemesis-like” games further promoting the games years after release, instead people choose to play other games. For example, while Warner Bro’s 2017 sequel Shadow of War, has about 59,000 reviews on Steam, a popular game-downloading platform, at the time of this writing; Player Unknown’s Battlegrounds (PUBG), an innovative shooter that also released in 2017, had over 1.5 million reviews before it was free to play in early 2022. While the multiplayer aspect of PUBG can account for its popularity, the consistent rivalryamong PUBG, Fortnite, and other similar “Battle Royale” shooters caused players that liked one of the games to try the other games.
The patent system fails for AAA video game mechanics because the AAA video game industry requires comparison. Instead of forcing people to be reliant upon a singular option like in the pharmaceutical sphere, video game consumers will always have a choice. This choice causes people to play similar games, and since there are no other games that feature a Nemesis System, it inherently limits future sales of the game. While Warner Bros ensures that a group of players who loved the Nemesis System will come back to play future games (which can be evidenced by the increased number of Steam reviews from Shadow of Mordor to Shadow of War), by actively preventing other developers from implementing the Nemesis System, Warner Bros limits their own future sales. Being unique in the AAA video game sphere is only useful so long as other games can be compared to yours. Without the benefit of free advertising, the uniqueness of a video game system can often only go so far.
To bring it back to The Medium, the unique Dual-Reality mechanic should be celebrated by the gaming industry due to its innovative nature. If other developers were to use that mechanic, it would always be known as “the Medium mechanic.” It would inherently generate attention to The Medium and future projects by Bloober Team that use that same mechanic, the same way that the new Metroid game received significant amounts of attention and increased sales in previous Metroid games. Instead, Bloober Team has hurt their future profits by stifling the natural conversation that occurs in the video game world. Patents should not be used to patent major video game mechanics in AAA video games, as such devices only hurt the developers over time due to an overall decreased player base.
Peter VandeVort is an Associate Editor on the Michigan Technology Law Review.