Analysis: In what has proved to be a controversial move among game developers, Warner Brothers has secured a U.S. patent for the Nemesis System, the signature mechanic of two hit video games set in the Lord of the Rings universe.
WB’s patent on the Nemesis System, #US20160279522A1, is listed as “Nemesis characters, nemesis forts, social vendettas, and followers in computer games.” Notably, WB has been trying to get this patent approved since March of 2015, shortly after the initial September 2014 release of Middle-Earth: Shadow of Mordor. The US Patent and Trademark Office released a notice on Feb. 3 that states the patent will go into effect on Feb. 23, and could remain in effect until 2035.
This has created widespread backlash in the industry, ranging from indie developers (one of whom has founded an ongoing “game jam” project, the Neme-Jam, to play with the concept in the two weeks before the patent takes effect) to AAA studios. It’s a low-key debate, but one that could have wide-ranging consequences for the already strange relationship between video games and intellectual property law.
Shadow of Mordor, developed in Kirkland, Wash., by Monolith Productions for PlayStation 4, Xbox One, and Windows, is set in the decades between the events of J.R.R. Tolkien’s The Hobbit and the first book of the Lord of the Rings trilogy, The Fellowship of the Ring. As Talion, a ranger in Gondor’s army, players are charged with conducting a campaign of guerilla warfare against the orcish armies of Sauron. Shadow of Mordor was both commercially and critically successful, which led to a sequel, Shadow of War, in 2017.
One of the major cited reasons for both games’ success is the Nemesis System, an elaborate gameplay mechanic which can turn random orcs in Sauron’s army into unique antagonists for the player. If one of the Uruk-hai you encounter in-game manages to perform a unique feat, such as beating you in a fight or surviving their encounter with you, the Nemesis System remembers that and begins building that previously-nameless soldier into a recurring antagonist.
Your Nemesis can earn promotions in the army’s ranks, remember details about their fights with the player, and eventually turn into a custom-made non-player character (NPC) that can be fought again and beaten for greater rewards. In the late game, they can even be converted into double agents for the player, working from the inside to weaken Sauron’s army.
In practice, it’s not unheard-of for game companies to file a patent on behalf of their products’ unique features. For example, the Japanese company Namco Bandai has a patent on record for its series Katamari Damacy, which was filed in 2003 and granted in 2008.
The unique central mechanic of the Katamari games, where the player rolls a sticky ball around an arena to gather up loose objects, is legally protected until 2026, which goes a long way towards explaining why there haven’t been a couple of hundred “Katamari-likes” by now.
What’s creating the controversy with WB Games’s patent on the Nemesis System isn’t simply the establishment of a patent, then, but from two separate sources. One comes from how broad the patent’s language is, which could allow WB to charge competitors for licensing, or simply take them to court, when they attempt to implement anything even vaguely similar to the individual elements of the Nemesis System.
This could include features in recent games such as Watch Dogs: Legion, which allows you to recruit virtually any person you pass in the game’s world as a playable member of your team, or the unique Mercenaries who may spawn to hunt you down in Assassin’s Creed: Odyssey.
Since I was forced to learn a bit about this: a patent is not a copyright & having one doesn’t necessarily mean they’ll enforce it or win a case on it.
What it does mean is they made a move to ensure they legally could & that in itself is “meh” enough that I hate it. https://t.co/jHzffdjPto
— Rami Ismail (رامي) (@tha_rami) February 6, 2021
The other point that’s been raised comes from the iterative nature of game design. Video games by their nature aren’t made in a vacuum. Like any other creative process, game developers will take systems that were effective, or at least popular, from previous releases, then improve on them for their final product. Every new game is inspired, often visibly, by features and mechanics from the other games that came before it, filtered through the unique ideas and perspectives of its current developers.
“The game industry is built on the backs of the giants before us, and all of those who not only share what they did but show how they did it,” said Chet Faliszek, ex-Valve writer and current co-founder of the Seattle indie studio Stray Bombay, in a statement to GeekWire. “This is a central part to the modern industry where fellow developers are not seen as the competition, but as peers attacking the same goals. Software/design patents like the Shadow of Mordor patent are a slap in the face to these ideals and should be called out for what they are: an aberration, not the new way forward.”
With that in mind, the Nemesis System is unique in how well it was made and marketed, but its individual features are a conglomeration of elements that can be found in multiple earlier games. Depending on how seriously you want to take the conversation, you can point to enemy recruitment/manipulation tactics in Japanese strategy games like Disgaea, procedurally-generated rivalries in racers like Burnout, or monster-collecting in Pokemon or Shin Megami Tensei.
Viewed through this light, it looks like WB has not only violated a sort of unspoken rule in modern game design, but has filed a patent on behalf of systems that it didn’t wholly create in the first place. At a glance, particularly with how often WB had to file, adjust, and re-file its application before it finally succeeded, it looks like the patent on the Nemesis System is effectively meaningless at best—it’d only kick in if a rival company were to create a game with something that’s essentially identical to the Nemesis System—and a legal cudgel at worst.
