I don't think this is a completely unfounded concern, the games will ultimately be limited by their coding sure , and many publishers/developers will likely not want to patch their games, making patches costs money and most likely these games are past any notable monetization. That being said, I don't see why publishers/developers wouldn't want to upgrade their games this time around, many were already on board upgrading their games when the PS4 Pro came out, I don't imagine things will be that different here. It would definitely help Microsoft a great deal if they allowed each game an additional free patch or two to certify for each game's upgrade to support Scorpio; should allow them the option to tinker with new textures, new visual effects, new resolutions and framerates, etc, with the options to patch them later just in case they hit a snag there.
It's worth noting that around the time the PS4 Pro and Xbox One S released, many older XB1 games didn't receive HDR patches while many Sony games did, but they also came along with many of the PS4 Pro upgraded versions of games as well. Though newer games come with HDR support on both, I don't think developers were wanting to spend the money upgrading these older games on the Xbox One simply because they'd have to do it again in a year when the Scorpio releases. Each patch costs money, not just in worker-hours, but submitting it to MS for certification. I think the devs were willing to do it for Sony because they got HDR support with the beefier hardware and they could kill two birds with one stone, wasn't the same situation with the XB1 S. Though, I think when Scorpio releases, they'll finally commit to upgrading when they know what they have.
I personally hope they just don't slap-dash upgrade these old games out the door. I think there's a lot of room for substantial graphical improvement on many of the older games and I hope they take the time to take advantage of all that.
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