As I’ve mentioned before, my generation is probably the first to be raised on video games. As a lifelong video game player, it’s an industry that I keep an eye on because of personal interest.
Recently, my two worlds collided. In the patent world, the USPTO recently granted Warner Brothers Entertainment Inc. (WB) patent 10,926,179 titled, “Nemesis characters, nemesis forts, social vendettas and followers in computer games.” Back in the video game world, this patent is embodied in the Nemesis system. The Nemesis system premiered in 2014 game, Shadow of Mordor. Shadow of Mordor was a critical and commercial success, with a lot of the critical acclaim directed to the Nemesis system.
The Nemesis system provided open world games a fantastic system of escalating specific enemy encounters through a series victories and defeats. It allowed the player to weave their own personal tale of defeat, revenge and ultimately, conquest amidst the backdrop of the Lord of the Rings universe. The Nemesis system breathed life into orcs by giving them a personality. Now, orcs took getting killed personally so they would come back to life stronger and angrier while plotting their revenge. The orcs wouldn’t just lash out at the player, there was also a significant amount of infighting and backstabbing within their own ranks. There may be honor among thieves, but definitely not among orcs.
Since patents are already pretty dry, I won’t get into an analysis of the ‘179 patent. If you’re that interested, it’s easy to go over to the USPTO or Google Patents and read it for themselves. Instead, I wanted to point out two subtle observations that provides insight into how the patent office grants patents.
Where could be the key…
First, despite the bad rap that software patents have taken since the Alice case, the USPTO is still granting patents on software. In fact, software appears to be on the way up. The key might be where the USPTO assigns the application. I went to patentbots.com to compare some different groups within the USPTO and came up with the following statistics. As a baseline, the USPTO has a 3 year overall grant rate of 68%. The ‘179 was examined in Art Unit 3715 which is part of Group 3710 which is home to Amusement and Education Devices. Art Unit 3715 has a 3 year grant rate of 58% which is below the USPTO’s overall average. As we can see, Art Unit 3715 is granting software patents, albeit below the USPTO average.
For me personally, I’d love to get some applications into Art Unit 3715. Most of my dealings are with Group 1610, which is home to Organic Compounds: Bio-affecting, Body Treating, Drug Delivery, Steroids, Herbicides, Pesticides, Cosmetics, and Drugs. Group 1610 has a 3 year grant rate of only 45% – much lower than Art Unit 3715 and the USPTO baseline.
Going back to software, the group to avoid is Group 2140-2170, which is home to Graphical User Interface and Document Processing. This Group has an overall 3 year grant rate of 50%. While this is higher than my beloved Group 1610, it is lower than Art Unit 3715 and the USPTO baseline. Taking closer look at some of the Art Units within the group further reveals the challenges that software faces. Group 2140-2170 is the home of some Art Units that have some of the lowest grant rates in the USPTO. We’re looking at rates under 40%, with multiple individual Examiners having rates below 20%. I even saw an examiner with a grant rate of 2% – so good luck with that!
Despite these low percentages, the USPTO is still granting software patents. So if you legitimately have a patent that is novel and non-obvious, there is still hope – which brings us to my second observation.
Patience is a virtue…
The second observation is that while WB did end up with a patent, it took a long time. WB filed the initial provisional application on March 26, 2015 and the USPTO granted the patent on February 23, 2021. We’re looking at a 5 year, 11 month prosecution time. That tells me that a lot of work went into the application to make it grantable. In the end, the USPTO rewarded WB’s persistence with the ‘179 patent. So, if you have something that is truly innovative you can get a patent on it. Just be patient, it’s not going to happen tomorrow, next month or even next year, but it will happen.
Unfortunately, now that I know how it all works, some of the magic of the Nemesis system is now gone. Now I can’t take that Orc’s vow of revenge after killing him for the 5th time personally anymore – he’s just doing what the ‘179 patent is telling him to do.