In 2021, Warner Bros. Entertainment Inc. was granted a US patent (US10,926,179) for its "Nemesis system" - a gameplay mechanic featured prominently in the game Middle-earth: Shadow of Mordor and its sequel. The system tracks player interactions with non-player characters (NPCs) and generates dynamic, evolving personal rivalries between the player and procedurally generated characters. These NPCs can remember past encounters, level up if they defeat the player, and behave differently depending on narrative context, prior events, and randomisation.
The patent has generated considerable controversy within the games industry with critics arguing that patenting such gameplay systems may have a chilling effect on creativity and fair competition. Despite these criticisms, the case raises an important and common question: Is it possible to patent game mechanics like the Nemesis system in other jurisdictions such as the UK or Europe?
A case in point: GB2214412.5
A recent UKIPO decision (BL O/0390/25, concerning GB2214412.5 by Bandai Namco) provides a clear example of the difficulties which can be encountered by this subject matter. The application involved a real-world game where players gather at a physical location. The patent application relates toa server system that initiates a gathering event, displays a map to players, tracks whether the players reach the real-world location, determines the success or failure of the event based on this, and provides rewards accordingly.
Despite using GPS and mobile devices, the application was refused. Why? Because the technical means (GPS, maps, rewards) were all considered known or incidental. The actual contribution was considered as merely a new rule or method of gameplay implemented using standard technology.
The UKIPO's four-step Aerotel 1 test was used to determine whether the invention fell under the category of excluded subject matter and was rejected on this basis. The rejection may not be seen as a surprise because it tends to approach excluded subject matter in a very top-down way, i.e. the analysis of the claims starts from the assumption that there is excluded subject matter and this tends to lead to the conclusion that the subject matter is excluded, even when the AT&T Signposts 2 were considered.
The UKIPO vs. EPO: Two different approaches
Unlike the UKIPO, the European Patent Office (EPO) uses a more permissive approach at the subject matter eligibility stage. Based on Article 52 EPC, for assessing the patentability of computer-implemented inventions (CIIs), the EPO uses a "two-hurdle approach":
- First Hurdle (Eligibility): If the claimed subject-matter involves any technical means (e.g. a computer), it passes.
- Second Hurdle (Inventive Step): Only technical features are considered when assessing inventive step, using the COMVIK approach 3.
In practice, this means applications often progress further at the EPO than at the UKIPO, although ultimately only technical contributions will support inventive step. Crucially, game-related inventions can be deemed patentable at the EPO where they solve a technical problem - for example, improving resource usage in a server system, enhancing synchronisation in multiplayer environments, or reducing network traffic.
This contrast highlights a practical point for applicants: the same invention might be refused early in the UK but still stand a fighting chance at the EPO. Innovators who are filing patent applications in this space should therefore consider tailoring their strategy to both jurisdictions, emphasising technical contributions where possible and keeping in mind all possible technical advantages that are delivered by what they have developed.
Conclusion
Patent protection for computer games is not out of reach - but it requires careful framing. The contribution must be technical, not just novel gameplay. At the UKIPO, that means passing Aerotel and the AT&T signposts. At the EPO, it means showing technical character and inventive step.
For developers and their patent advisors, this starts before filing. Identify the technical effect early and draft the claims around it. Avoid relying on game logic alone. A game might be fun, but to be patentable, it must also be technical.
Footnotes
1. Aerotel Ltd v Telco Holdings Ltd and Macrossan's Application [2006] EWCA Civ 1371
2. AT&T Knowledge Ventures LP, Re [2009] EWHC 343 (Pat) and HTC v Apple [2013] EWCA Civ 451
3. T 0641/00 (Two identities/COMVIK) [2002
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
