Is Fortnite’s Imposter Mode Kind of Sus?

The popular game maker Epic Games, Inc. (“Epic”) has continually tried to maintain the popular game Fortnite’s relevance through consistent updates, including concerts and new game modes. The Ariana Grande concert was largely successful, with 12.3 million viewers tuning in. Their new “Imposter Mode” is also looking successful, but not without controversy.

Some members of the team behind the popular game, Among Us, InnerSloth LLC (“InnerSloth”) have expressed displeasure with the new game mode, bringing up the similarities between Among Us and the game mode as well as the fact that they did not patent Among Us’s mechanics.

“We didn’t patent the Among Us mechanics. I don’t think that leads to a healthy game industry. Is it really that hard to put 10% more effort into putting your own spin on it though?” 

But even if they had sought a patent, it is unclear what elements of the game could be patent eligible in a way that would preclude Fortnite’s imposter mode. Mechanics included in the game such as several “secret” or “imposter” players who try to defeat a larger team are included in games such as Mafia/Werewolf, One Night Ultimate Werewolf, Trouble in Terrorist Town, Secret Hitler, Town of Salem, and Spyfall.

The holding in In Re: Marco Guldenaar Holding B.V. made it clear that broad game rules are not patent-eligible under 35 U.S.C. § 101. Mechanics like some of the mini game tasks may be patent eligible, but would likely not stop a similar game such as Fortnite’s imposter mode because it features different minigames. So, even if InnerSloth had a patent on game mechanics for Among Us, it would still likely be possible to make similar games because it could not be so broad as to be enforceable against all lying games or social deduction games.

The first ever social deduction game (that we know of) was Mafia (also known as Werewolf), invented in 1986 by Dimitry Davidoff for psychological research and social deduction . The format is longstanding, meaning there is a lot of prior art making the patent landscape for such games difficult for broad enforcement as a plaintiff may desire. Even narrow concepts and refinements may be precluded by prior art or so narrow as to not secure much enforceability anyway.

But § 101 concerns aside, there’s likely another reason InnerSloth did not patent the mechanics of Among Us considering the way that the game became popular. Among Us blew up during the pandemic, two years after the game’s initial release. The initial release was not a massive success and it likely did not seem worth it to patent the game’s mechanics at the time. The huge popularity of the game (and the revenue!) exploded two years after the game’s initial release. But under 35 U.S.C. § 102, to be eligible patents cannot be disclosed to the public or on sale for over a year before filing for an application. Considering the game has been available since 2018, any game mechanics that were already present in the game would not be eligible for patenting in a new patent application since they have been on sale for more than a year.

The Among Us mechanics became known to the public more than two years ago, and any technical refinements the game made beyond the Mafia game genre are subject to the one year on sale bar of 35 U.S.C. § 102. If InnerSloth wants to claim infringement against Epic, or other suspiciously similar games like Goose Goose Duck or First Class Trouble, it seems like they will need to look to IP rights other than patents.

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