After 15 years of suing third-party Wii controller maker Bigben (Nacon) over a patent, Nintendo has won a 7 million euro damages judgment — which is now being appealed

Context:

• Last month, Nintendo suffered a setback in its patent dispute with Palworld maker Pocketpair and, more generally, its quest to protect Pokémon-related game rules through patents (November 4, 2025 games fray article).

• Nintendo regularly finds itself on the receiving end of patent litigation. It settled two cases over former BlackBerry patents that would have gone to trial earlier this month (December 2, 2025 ip fray article; subsequently confirmed by U.S. court filing: LinkedIn post by ip fray).

What’s new: Today, Nintendo’s German counsel issued a press release on a recent judgment by the Landgericht Mannheim (Mannheim Regional Court) awarding Nintendo damages of 4 million euros plus interest, resulting in a total shy of 7 million euros, for third-party game controller maker Bigben Interactive’s (now named Nacon) infringement of a Nintendo patent in Germany with its third-party Wii controllers.

Direct impact: The litigation over EP1854518 (“Game operating device”) started in June 2010 and resulted in a first judgment on the merits in July 2011. But various factors enabled Bigben to delay a damages ruling until now. Bigben (Nacon) has appealed. Nintendo could enforce the damages verdict now regardless of the appeal, but it would have to give security for the event that the appeals court arrives at a lower amount. The amount is small compared to the size of Nintendo’s overall business and after 15 years, its litigation expenses (only a part of which will be recoverable under Germany’s “loser pays” rule) will not be lower, or at least not much lower, than the amount Nintendo will recover if the appeals court affirms this decision.

Wider ramifications:

• This dispute is not comparable to Nintendo v. Pocketpair. It’s about a hardware patent, not game rules. It is highly unlikely that Nintendo’s dispute with Pocketpair will last even one third as long, though Nintendo clearly is a litigant who is willing to see cases through.

• The Mannheim ruling has interesting aspects from a patent law perspective as discussed below.

Nintendo opted for a “lost profits” damages theory. The alternatives would have been to argue that the damages amounted to what Bigben would have paid as a reasonable royalty, or to seek a disgorgement of Bigben’s profits. It is relatively uncommon that patent holders argue on the basis of their own hypothetical profits, not least because it forces them to disclose the profitability of their products. In this case, however, Nintendo decided to do that.

The court rejected Bigben’s argument that some of the sales Nintendo lost because of Bigben would have gone to other third-party controller makers in the absence of Bigben’s product. The court did not buy that because it considered Nintendo’s patent-in-suit strong enough that it would not have been possible to make a Wii controller without infringing that patent.

Bigben also failed to persuade the court that general overhead should be deducted from Nintendo’s hypothetical profits. Instead, the lost profits were calculated based on the assumption that overhead would have remained unchanged if the hypothetical incremental sales had been generated.

This is a particularly long-running patent litigation, and at an interest rate of 5% per year above the central bank rate, that fact has added almost 3 million euros on top of the damages amount of 4 million euros.

Damages cases are rarely brought in Germany, a jurisdiction in which patent disputes are typically resolved on the basis of injunctions. And even when that stage of proceeding is reached, parties typically settle. In this case, both Nintendo and Bigben kept on fighting. And they have at least one more round of litigation ahead as Bigben appealed the Mannheim decision to the regional appeals court, the Oberlandesgericht Karlsruhe (Karlsruhe Higher Regional Court).

Many future cases of this kind will be filed in Europe’s Unified Patent Court (UPC), a common court of 18 (of the 27) EU member states.

Court and counsel

Mannheim Regional Court, 2nd Civil Chamber: Presiding Judge Elter, Judge Stihler and Judge Kunkel.

Counsel for Nintendo: Bardehle Pagenberg’s Dr. Christof Karl and Pascal Boehner (“Böhner” in German). The firm has had numerous successes, some of which are listed in its ip fray firm profile.

Counsel for Bigben: FPS Fritze Wicke Seelig’s Christian Hertz-Eichenrode and Dr. Frank Hagemann.