Success for Nintendo against Bigben over Wii in France and Germany

At the heart of both disputes lies EP 1 854 518. The patent protects a game operating device that combines ergonomic aspects with sensor technology, including a camera and accelerometer. The Wii Remote, the main controller for Nintendo’s Wii console launched in 2006, features this technology.

Bigben Interactive, a French company that primarily distributes computer games and game console accessories through its subsidiary Nacon, marketed a controller compatible with the Wii console. Nintendo claimed this infringed its patent.

In 2010 Mannheim Regional Court found Bigben had infringed EP 518, granting injunctive relief and damages to Nintendo (case ID: 2 O 113/10). The defendant appealed, but in 2017 the Higher Regional Court Karlsruhe upheld the Mannheim decision (case ID: 6 U 87/11). A rare damages assessment claim followed.

According to press reports, in an October ruling this year, Mannheim Regional Court awarded Nintendo damages amounting to over €4 million plus interest, totalling just under €7 million (case ID: 2 O 17/24). Nacon has appealed to the Higher Regional Court Karlsruhe.

French connection

In parallel proceedings in France, Bigben challenged EP 518 on grounds of inadmissible extension beyond the original patent application, lack of novelty, and lack of inventive step. The proceedings initially included two additional Nintendo patents, EP 1 757 344 and EP 1 985 343. In January 2015, the Paris Judicial Court dismissed Bigben’s nullity suits and Nintendo’s infringement claim for EP 518 and EP 344. However, the court declared claims 1 and 3 of the French part of EP 343 invalid. Nintendo appealed.

After the EPO Boards of Appeal revoked EP 343 and EP 344 in 2019, the dispute focused on EP 518, specifically the acceleration sensor. Bigben and Nacon argued it had been isolated from a group of features such as sensor and processor that had originally only been disclosed in combination. They contended that without explicitly including a processor, this constituted an inadmissible extension.

Nintendo countered that the earlier application of basic patent EP 344 expressly disclosed that the acceleration sensor could be used with ‘any other processor’. Thus, for the skilled person, a processor for data processing was implicit and necessary, and did not need to be expressly claimed.

In April 2023, the Paris Court of Appeal declared the French part of EP 518 invalid (case ID: 15/14683). Simultaneously, the judges found Bigben and Nacon guilty of unfair competition and misleading commercial practices, as their packaging and marketing suggested the controllers originated from Nintendo. The court ordered Nacon to pay €1 million in damages to Nintendo France.

More to come

Both parties appealed to the French Supreme Court. The Cour de Cassation in Paris has now affirmed the principles regarding article 123(2) of the EPC, that amendments must not extend the disclosure beyond what was originally disclosed and that intermediate generalisations are only permissible without a close functional or structural link. However, the highest French court ruled that the earlier application indeed allows the sensor to be used with ‘any other processor’ and that an inseparable reference to the specific processor could not be assumed.

Nathalie Sabotier

The judges overturned the previous ruling invalidating EP 518 and referred the case back to the Court of Appeal under a differently composed panel (case ID: 24-12.462). The panel at the Cour de Cassation included Vincent Vigneau, president of the supreme court’s commercial chamber, and judges Philippe Mollard and Nathalie Sabotier. Sabotier, a well-known French judge with extensive experience in patent disputes, was recently appointed to the newly established third panel of the UPC Court of Appeal starting January 2026.

While the EPO revoked the basic EP 344 on grounds of inadmissible extension, EP 518 survived Bigben’s opposition at the EPO. After the Opposition Division initially limited the patent due to inadmissible extension, the Boards of Appeal upheld it in its entirety in 2016.

Until recently, Nintendo was also battling Malikie at the UPC over different patents related to games console technology. In 2024, the Irish NPE Malikie filed lawsuits against Nintendo at the local division Hamburg based on two implementation patents from a portfolio acquired from BlackBerry. However, at the end of November, both parties withdrew their respective claims for infringement and counterclaim for revocation.

Bardehle for Nintendo in Germany

In the dispute at the Cour de Cassation, the firm Le Guerer, Bouniol-Brochier, Lassalle-Byhet represented Nintendo. The firm’s lawyers are admitted to the French Supreme Court. In the previous appeal, François Teytaud of Teytaud-Saleh represented the Japanese company, with assistance from Frédéric Benech and Virginie Lehoux of Cabinet Benech. Teytaud specialises in appeal procedures.

Christof Karl

In the parallel German action, Nintendo relied on Bardehle Pagenberg from the outset of the infringement suit. Christof Karl, who is dually qualified as a patent attorney and lawyer, handled the infringement and nullity proceedings as well as the recent damages dispute for the Japanese client. Bardehle partner Pascal Böhner assisted in the damages claim, while patent attorney Patrick Heckeler collaborated on the infringement and nullity proceedings. These are among the firm’s longest-running cases and were among the first Bardehle conducted for the client. Patent attorneys Johannes Lang and Udo Altenburg acted in the patent application and opposition proceedings.

At the UPC, Nintendo also relies on a Bardehle team led by Johannes Heselberger, with assistance from Christof Karl, Saskia Mertsching, Martin Hohgardt, and Maximilian Vieweg.

Many representatives

At the Cour de Cassation in Paris, Piwnica & Molinié, a firm specialising in appeals before the French Supreme Court, acted for Bigben and Nacon. In the original appeal procedure over EP 518’s infringement and nullity, Pascal Lefort of renowned French firm Duclos Thorne Mollet-Vieville led the case for the French companies. Arnaud Guyonnet, a Court of Appeal specialist, assisted. Guyonnet previously worked with DTMV for Hutchinson in its dispute against Tyron Runflat.

For the EPO opposition proceedings, Bigben retained Philippe Vigand from patent attorney firm Novagraaf’s Geneva office. Munich patent attorney Axel Schiffer, then with Weber & Heim, filed the German nullity suit. Later, a team from Uexküll & Stolberg led by patent attorney Johannes Ahme took over the nullity suit representation. The Hamburg patent attorney firm received the instruction via FPS Fritze Wicke Seelig, with which it has a long-standing cooperation.

IP boutique Klaka represented defendant Bigben in both the EP 518 infringement and design patent cases. The firm has since lost nearly all its renowned patent partners.

FPS acted for Bigben in the damages claim, with a team led by of counsel Christian Hertz-Eichenrode and Frank Hagemann. The German firm came to the case via its close French contacts. FPS’ IP team primarily has a reputation for its trademark expertise but also represents clients in patent infringement cases.

At the UPC, Malikie retained a team from Munich-based firm Peterreins Schley, led by partner Thomas Adam.