Friday, May 16, 2014

Wizards Of The Coast Sues Over 'Tapping' Patent

by SandWyrm

Evidently Wizards of the Coast is jealous of all the bad press that GW got last year. Because they're suing Cryptozoic Entertainment over their Hex:Shards of Fate game. Which blew past its Kickstarter goal of $300,000. Netting a total of $2,278,255.

Now, it is long-established case law in the US that game rules cannot be copyrighted as a sequence of steps. Only as a complete work that would include the exact rule wording, models, fluff, artwork, etc. So a game's publication in its final form is protected. But not the sequence of gameplay it describes.

It would be perfectly legal, for instance, to copy Warhammer 40,000's rules. So long as you don't duplicate all of their unique names, wording, or copy the models/fluff that are sold with it.

Which is essentially what FFG did when they adapted the rules for Wings of Glory to create their X-Wing Miniatures game. Whereas Wizkids didn't want to mess around with a re-write, and just licensed X-Wing's 'engine' for Star Trek: Attack Wing. Which is why they both use the same stands, base-cards, range rulers, hit-dice etc.

So given all that, what's the basis for WotC's suit? Well, they infamously patented their gameplay system, card layouts, and the act of 'tapping' cards. Lots of games turn their cards 90º during play to signify stuff. But none dare call it tapping. Yeah, it's BS.

Seeing as how this is a relatively well known garbage patent, and that it's defeat could have serious political effects in other industries, I expect that the Electronic Frontier Foundation will jump at the chance to get involved. Just as it did with the Chapterhouse case. Popcorn time guys.

I do expect that the legal team for Hasbro/WotC will put up a more competent fight than GW did. Still, I hope this patent gets tossed and that it helps the case for patent reform in this country.

UPDATE: On the other hand, maybe Hasbro/WotC aren't that legally competent. Seems that patent expired in 2004 and was never renewed. Oops! 

Hey! It's our eleventy-eleventh post! 


  1. the problem is that they are RICH dumbasses with a huge impact in the industry. even if they have no legal standing, just the IDEA of facing them is more daunting than small scale operators can handle.

    1. That's gotta be what they're counting on here, I think.

  2. @Hasbro

    Eeow... meow meow meow...

    Ones don't get a rhyme. ;)

    1. Well at least these things are always amusing.
      Popcorn time indeed.
      Not quite Apple vs. Samsung, but amusing none the less.

    2. For those who don't understand:

  3. The lawsuit isn't explicitly about their tapping patent. They are claiming that the product is a blatant rip of magic and any changes they did make are superficial. Patent is just one of their claims, and they are also claiming trade dress and copyright. My take on their claim is that Hex lifts so many mechanics that are individually not a problem, but taken together makes Hex essentially a re-skinned version of Magic.

    it may or may not prevail in court, but I don't think this is a frivolous suit. If you see some of the comparisons between magic cards and the cryptozoic ones it defiantly looks like they where trying to see how little they could change something without getting sued. Check out the actual filling You can see some of the cards that look almost identical to their Magic counterparts.

    Personally I think the game looks like a blatant ripoff. Legally, I'm not sure if it's an actionable rip off. It's not a clear cut issue here. I think WotC has a point, and I think Cryptozioc was skating pretty close to the line of infringement if not having gone over it completely. And where not talking a GW stye thuggish suit to scare some guy with a garage business. They're a real company with major licenses(DC, lord of the rings, Wow). They're not as big as Hasbro, but not just some random dudes that will have to take out a second mortgage on their house to hire a lawyer.

    1. The mechanics themselves, even the number of 'hit points' and such used, can't be defended in that way though. And when you boil it down, that’s the only case that Hasbro/WotC has.

      Ignoring the lapsed patent… The whole essence of copyright/trademarks, and what will ultimately make or break Hasbro/WotC’s case, is whether or not Cryptozoic is confusing WotC’s customers with this product. If there is no confusion, they have no case.

      Looking at the card comparisons in the link you provided, I see a clear, distinctive design in Cryptozoic’s cards. Such that no MTG player would mistakenly buy or use them in a MTG game. Plus there are literally dozens of other games that use similar card layouts.

      It may well be a shallow rip-off of MTG, but as long as it doesn’t duplicate the non-system wording or artwork of MTG, it’s not a case that has merit. Hasbro/WotC are simply hoping that they can scare away a new competitor that has gotten a LOT of attention in their kickstarter.

    2. The filling has examples of players saying the game is basically magic. I think that the situation is ambiguous enough that non-lawyers arn't going to be able to call this one.

      The patent is actually still valid. It gets 20 years from the priority date(6-22-1994). So it's good for another month. It's down to the wire, but still in effect.

    3. The suit could also just be saber rattling. The filling says they sent a list of changes they wanted Cryptozoic to make. So the suit could just be WotC letting them know they aren't bluffing in order to get Cryptozoic to take them seriously.

      I don't think this is a GW style scorched earth strategy at play here. I could see there being settlement terms that would make WotC happy short of killing Hex off for good. WotC's lawyers have been pretty conservative in the past about IP lawsuits. I mean they aren't going for Paizo's throat over pathfinder, and they put D20 out there as an open system.

    4. Yeah, I don't doubt that the game is basically a MTG ripoff. Though they must have improved something to attract so much Kickstarter cash. But again, being similar is not against the law for a game product. As the only defensible points of similarity would be the exact rules wording, artwork, visual design work, etc.

      So the only grounds for Hasbro/WotC to win anything is whether their customers would be legitimately confused into buying what they think is MTG, but actually isn't. Which is going to require surveys of MTG customers and some blind tests to settle in-court.

      That's why, BTW, we can't use GW models to illustrate the rules in WarStrike. Because we have to be clear to any casual reader that we're not a GW/40K product. Else GW could cite confusion and come after us. Even though our actual rules are quite different, and our own expression went into the assembly and painting of those GW models. Because we’re not allowed to deliberately confuse customers into thinking our game is their product.

    5. Basically, GW went after Spots the Space Marine just to see if they could get away with it. They went after Chaperhouse thinking that a little garage operation would back down in shock (which they usually do). You can argue (and they have) that it's GW's duty (to investors) to defend whatever they can, and push out the boundaries of their IP ‘territory’ as far as they can.

      This is different from how GW tends to treat hobby groups that infringe on their IP, such as Librarium Online or BoLS. Where they are usually quite specific on what they think is infringing, and are quite happy to back off once those changes are made. Because these groups are not seen as ‘stealing sales’ from GW.

      The Cryptozoic case strikes me as much more like the former strategy than the latter. Hasbro may not really know if it has a case or not. But a new competitor with $2.3M in startup cash for a similar sort of game HAS to be responded to; and this is the easiest/cheapest shot across the bow that they can take. If it works, and Cryptozoic blinks, then they’ve won. If not, they at least bleed some of that cash while they think of other competitive strategies.

    6. It's not so much about confusion as it is about the intended audience noticing substantial similarity. As in you don't have to copy word for word to commit copyright infringement. Or have to find really stupid people to be "confused". If WotC can show that Hex's differences are mearly superficial, they can show infringement. Total concept and feel can win you a copyright case in the us.

      What I'm trying to say is that this isn't a clear cut good vs evil case. This is a bad case to go, " HURR, broken US IP Laws and EVIL giant companies, HURR". If it was I'd be right there with you because a lot of IP litigation is total BS. This one I don't thing falls into that category. This is the type of case we have IP laws for and both companies have the resourepces to work this out in court. Godzilla vs Mothra, not David vs Goliath.

    7. It comes down to idea versus expression. Take Warstrike for example. The idea is very similar to 40K, A company level tabletop game with 28mm set in a grim dark sci-fi setting. The expression of that idea is vastly different. It's not just 40K with different names for things. It's an entirely different game system that has it's own unique feel and experience to it.

      Hex, on the other hand is not expressed very much differently than Magic. And the suit does mention this in regards to the online version of MtG. The game has different art and symbology and a few new mechanics, but your essentially playing a game of Magic. Not a similar CCG about summoning monsters and battling them, but a copy of magic. At least that's what the suit contends, and I've read a few online descriptions of the game that come to pretty much that same conclusion.

    8. The 'Look and Feel' argument didn't work for Apple vs. Microsoft back in the day (UI case), and it hasn’t worked in Apple vs. Samsung either (tablet industrial design). As the initial decision in favor of Apple was overturned, modified, and finally the whole matter was dropped by both companies a few days back because it was stupid.

      It didn’t work for George Lucas when he went after Larson’s Battlestar Galactica, and Larson was even using the exact same spaceship designers and effects guys on his show that Lucas used for Star Wars. The ‘look and feel’ of Star Wars was unique at the time, don’t forget.

      To win a copyright case, you have to prove that someone has stolen your concrete expression of an idea, not the idea itself. To win a trademark case, you have to prove that a competitor is deliberately confusing your customers into buying something that looks like your own product(s). Or the words and symbols that you use to sell them. Confusion surveys are the litmus test for both.

      Patents are the only IP system that limits others’ ability to use an idea. But WotC’s garbage patent wasn’t renewed. So it’s not really going to mean much to this case.

      I get that Cryptozoic has made a shallow MTG copy. How shallow is up for debate I guess, but it’s a shallow copy all the same. Certainly that’s not the way I would go about making a game. But that’s kind of immaterial to the legal strengths of Hasbro’s case, and I’m sure the designer of Wings of War is fuming at how FFG took a shallow re-write of his game and are raking in the cash after attaching the Star Wars IP to it.

    9. There are also plenty of times when look and feel have worked as well. It's a valid component of copyright law. Otherwise, you could just take a thesaurus to some copyrighted work and get a way with it. Does it always work? No, it depends on judge and jury and the facts in question. "Substantial Similarity" is a subjective test. "Look and Feel" will of course fail if the court decides that your look and feel is not copy-right-able in the first place.

      I never really said that this suit would prevail or not. Only that I think based on the available information that WotC probably has good enough cause to file a suit and argue it out in court.

  4. Patents are non-renewable. There are extensions available for specific cases however, but this is not one of them. No matter, The 'tapping' patent is an absurdity. The USPTO, sigh, what a mess.

    Perhaps you are thinking of a Trademark renewal? Trademarks need to be renewed every 10 years.

    1. Patents normally last 7 years in the US. With an option for a single 7-year extension.

    2. Actually, Trademarks don't need to be renewed. They only need to be in constant use in commerce to remain valid. You can establish and hold a trademark without ever 'registering' it. Simply by putting TM after it, and using it to sell stuff.


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