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 Absolutionis wrote:
Oh wow. Just looking at the wiki, the parallels are hilarious.
[snip]
This is the best stuff ever.

You know, I don't even feel bad for them, or dislike Wizards for doing this any more.

Sure Wizards' patent is stupid. But this is like poking a dragon...

Well, if the guy that started Dumb Starbucks can get away with copying Starbucks to a T and legalize the whole thing simply by placing the word "dumb" in front of everything... Then what hope does WotC have?

I'm not making this up, this is not a hoax. Dumb Starbucks is real thing.

http://www.usatoday.com/story/news/nation-now/2014/02/10/dumb-starbucks-parody-free-coffee/5357597/

 oni wrote:
Well, if the guy that started Dumb Starbucks can get away with copying Starbucks to a T and legalize the whole thing simply by placing the word "dumb" in front of everything... Then what hope does WotC have?

I'm not making this up, this is not a hoax. Dumb Starbucks is real thing.

http://www.usatoday.com/story/news/nation-now/2014/02/10/dumb-starbucks-parody-free-coffee/5357597/

That has the fair-use protections of pardy to back them up.

The Cryptozoic product can hardly be called parody. If all of the card titles and artwork were cartoony and full of puns, then parody might fit, but that isn't the case here.

 oni wrote:
Well, if the guy that started Dumb Starbucks can get away with copying Starbucks to a T and legalize the whole thing simply by placing the word "dumb" in front of everything... Then what hope does WotC have?

I'm not making this up, this is not a hoax. Dumb Starbucks is real thing.

http://www.usatoday.com/story/news/nation-now/2014/02/10/dumb-starbucks-parody-free-coffee/5357597/

Not a thing anymore - it was some sort of comedy hoax thing and got shut down by Health and Saftey types:

http://www.nydailynews.com/entertainment/tv-movies/dumb-starbucks-shut-health-inspectors-article-1.1609947

richred_uk wrote:

 oni wrote:
Well, if the guy that started Dumb Starbucks can get away with copying Starbucks to a T and legalize the whole thing simply by placing the word "dumb" in front of everything... Then what hope does WotC have?

I'm not making this up, this is not a hoax. Dumb Starbucks is real thing.

http://www.usatoday.com/story/news/nation-now/2014/02/10/dumb-starbucks-parody-free-coffee/5357597/

Not a thing anymore - it was some sort of comedy hoax thing and got shut down by Health and Saftey types:

http://www.nydailynews.com/entertainment/tv-movies/dumb-starbucks-shut-health-inspectors-article-1.1609947

Point being that it was essentially performance art parodying Starbucks as part of a marketing campaign. As such it was protected by the Fourth Amendment. It is not a good example.

Saldiven: I don't have tome to go through the complaint until next week, but I will take a closer look at it. The arguments are most likely all appropriately made. Even so, generally speaking, suits that involve the overlap of disparate forms of intellectual property protection are problematic.

In my LEGO v Mega Bloks hypothetical, there would have been perfectly well demonstrable patent infringement, but things get kinky when you bundle up a bunch of legal theories and throw them in front of a jury all in one go. Note that GW asserted a nebulous "total look and feel" claim against Chapterhouse Studios, fundamentally not unlike Hasbro's trade dress claims.

One thing that Hasbro should be concerned about with this case is comparisons to Games Workshop. I am not saying that the cases are very similar, but there are potentials for parallels to be drawn, and I think for Hasbro the potential for damage to its brand would be more important than gaining some sort of edge in this lawsuit. For example, if the trade dress claims are going to lead to unsavory comparisons with GW, would it not benefit Hasbro in the long run to back off of those and put emphasis on its patent claims?

Hrm. I'm kind of torn by this particular case.

I don't have a problem with one company piggy-backing off of another. For example, I have a friend who makes custom "Token" cards for MtG players. You want a really cool looking, unique "Soldier" Token? Create the art you like, or commission my friend to create it, and he'll do the work to put that art on actual MtG cards (he has a technique for removing the existing front off of the cards and applying the new artwork seamlessly). I think that idea is really cool, and can't imagine there would be any legal problems (as long as the artwork he used was not copyrighted). I can envision lots of different ideas along these lines; sleaves, card boxes, life counters, etc. all designed specifically to be used with MtG.

But, I have to admit that I find it disturbing that one company could copy 90%+ of another company's game product and that new product be protected by the law the same as an original expression would be.

Though, I'm sure those more educated than I can explain how that's the way it should work.....

Saldiven wrote:
Hrm. I'm kind of torn by this particular case.

I don't have a problem with one company piggy-backing off of another. For example, I have a friend who makes custom "Token" cards for MtG players. You want a really cool looking, unique "Soldier" Token? Create the art you like, or commission my friend to create it, and he'll do the work to put that art on actual MtG cards (he has a technique for removing the existing front off of the cards and applying the new artwork seamlessly). I think that idea is really cool, and can't imagine there would be any legal problems (as long as the artwork he used was not copyrighted). I can envision lots of different ideas along these lines; sleaves, card boxes, life counters, etc. all designed specifically to be used with MtG.

But, I have to admit that I find it disturbing that one company could copy 90%+ of another company's game product and that new product be protected by the law the same as an original expression would be.

Though, I'm sure those more educated than I can explain how that's the way it should work.....

Pretty much exactly my point.

Custom tokens are fine. Art edits are also fine. They're either based on the original game or require the original game in order to operate. These can coexist with MtG where everyone can benefit.

Cryptozoic is essentially piggybacking off of years of Wizards's R&D and failures in order to create a game. The mechanics are functionally the same. You can take all these Cryptozoic cards, change the symbols/terms to fit the Magic card layout, and they would not only be perfectly compatible, but the cards/game would be just as interchangeably balanced.

Analogous to 40k, custom tokens are analogous to people making 3rd party bits or painting services compatible with 40k models.

What Cryptozoic is doing is taking the entire rulebook, changing around some terms (Imperium -> Dominion, Eldar -> Elves, Ballistic Skill -> Shooting Skill, Assault Phase -> Close Combat Stage, etc) and then releasing the game outright. Oh, and of course many of the units will have the same exact statlines as their counterparts.

---

Other TCGs/CCGs have unique mechanics and such that differentiate them in the genre that Magic created. Cryptozoic has literally just rearranged the cardfaces and terms of Magic outright to the point of everything being functionally interchangeable.

Except what Saldiven described is exactly what Hasbro's trade dress claims would protect against.

Like I said, there's fallout.

Is Hex the one cryptozoic Kickstarted too?

 cincydooley wrote:
Is Hex the one cryptozoic Kickstarted too?

Yes.

Man. How did this not get caught $2.3 million ago? It's kinda shocking this made it thru the KS process.

Funnily enough, with L5R still around, Netrunner back, and even Doomtown coming in August, there's no lack of unique and fun card games out there. Hex didn't even need to follow Magic as much as it has, and could have avoided this mess entirely.

That said, I'd still have to say that despite the similarities, it's not an open and shut case. To be honest, the idea of having cards generate resources of certain types, along with the fundamental types of cards is nothing new. Magic may have given those cards their initial names and colors in the public eye, but the concept of a spell or ability being instantly used, or a card that represents a creature/troop/unit/thing is not unique.

 Vertrucio wrote:
That said, I'd still have to say that despite the similarities, it's not an open and shut case. To be honest, the idea of having cards generate resources of certain types, along with the fundamental types of cards is nothing new. Magic may have given those cards their initial names and colors in the public eye, but the concept of a spell or ability being instantly used, or a card that represents a creature/troop/unit/thing is not unique.

There's much, much more than simple resource mechanics that were outright copied.

You could take a Hex deck and a Magic deck and have them play against one another using their own rulesets with no rules problems. All you'd have to do is change the terminology (Flight = Flying, etc).

For some cards, it's even an outright 1:1 copy in not only effect and cost, but the exact numbers and proportions of colors in their casting costs.

It's way beyond just copying vague ideas of resources and cards.

 Absolutionis wrote:


Cryptozoic is essentially piggybacking off of years of Wizards's R&D and failures in order to create a game. The mechanics are functionally the same. You can take all these Cryptozoic cards, change the symbols/terms to fit the Magic card layout, and they would not only be perfectly compatible, but the cards/game would be just as interchangeably balanced.

What Cryptozoic is doing is taking the entire rulebook, changing around some terms (Imperium -> Dominion, Eldar -> Elves, Ballistic Skill -> Shooting Skill, Assault Phase -> Close Combat Stage, etc) and then releasing the game outright. Oh, and of course many of the units will have the same exact statlines as their counterparts.

---

Other TCGs/CCGs have unique mechanics and such that differentiate them in the genre that Magic created. Cryptozoic has literally just rearranged the cardfaces and terms of Magic outright to the point of everything being functionally interchangeable.

To which the courts generally reply:

So?

Most of the similar elements which Hasbro cites will likely be seen as scènes à faire by the courts. They are essential aspects if you want to create a card game where you take on the persona of a wizard summoning creatures to attack another wizard. While the case law really isn't all that substantial regarding things like collectable cards or even tabletop gaming in general - you can point back at cases like Atari v Amusement World or Data East v Epyx and ironically enough Capcom v Data East.

If you look at other cases regarding game clones - for example Tetris/Mino (Tetris Holding, LLC v. XIO Interactive) - where the courts found against the clone, it is important to look at why. Mino was almost an exact copy of Tetris. They replaced it with original artwork (as original as colored blocks can be) but almost every single other aspect of the game was identical to Tetris, the changes made were deemed trivial. Another case involving Spry Fox's Triple Town and 6Waves Yeti Town (Spry Fox LLC v. Lolapps, Inc) also went against the clone. That case though involved some level of potential confusion (both games were named "Something" Town). 6Waves had access to Spry Fox's game as early beta testers and it is reasonable to assume that that went towards the development of their Yeti Town game.

While I definitely have a bias against overly broad applications of IP law - I don't really see much which is very convincing in the Wizards case. Is Hex a clone of MtG? Pretty much. Is that illegal? Not normally.

The patent is a different issue though from their other claims - and will be dealt with as so. The first attack on the patent will likely be that it isn't valid to begin with. Wizards applied for the patent in October of 1995. The first public release of MtG was at Origins in July of 1993. The statutory period which a patent must be applied for after public release is 1 year. Wizards waited over two years to apply for a patent, that alone should invalidate the patent. Before that though, they will likely request a reevaluation of the patent by the USPTO and a stay on the court case until the USPTO completes their reevaluation (which means nothing much will happen here for 2-3 years - one of the reasons patent cases are so slow to move anywhere).

Personally though, I hope that Wizard's backs down. Everyone is better for competition - that includes customers, businesses and inventors. If they are not confident enough in their product that it will stand out in the market place - they should improve their product, not file a lawsuit.

@ Sean I do agree with you. I am also interested to see what is going to be the reply from Cryptozoic and Hex Entertainment. Also there could be a twist on why this complaint was brought up now and not a couple of years ago. I mean a C&D letter should have been delivered. But I really need more information to comment further. The entertainment industry from my viewpoint is more or less a set of information circles that overlaps a great deal in the 21st century. So I'm curious a bit.

Could be an interesting read though.

Sean, the man with useful facts. I didn't know MtG was offered to the public two years before the filing of patent claims. That's usually pretty damning.

For those who are interested, there's good reasons for rules like that. Patents do not protect something that is known to persons of skill in the field. Ergo, if you tell people about it, the clock is ticking to patent it because there is a public interest served in allowing people to freely use available information to make things.

A patent teaches the public how to make and use your invention, but also provides a monopoly on that invention for a period of time. That's the trade off. You get a monopoly but you have to teach people how your invention works. If people have already had time to figure out how your invention works and do something with that info because it had been made available, it is not good to come back and undermine such efforts by having a patent pop up and provide someone else a monopoly on what you have made.

While I agree competition is great, I really feel like Cryptozoic screwed up here. And I REALLY like some of the stuff they've put out. Really, really like their LotR and DC deck builders. But this looks like a direct port where they didnt even try and just HOPED they wouldn't get caught. I can't support this decision, and while I hope it doesn't cripple them and cause no new deck builders, I support Magic in this case. And I don't even like Magic anymore. That said, I'm not a lawyer and have no experience with legal-ese. So mine is just the opinion of a member of the general public.

But this looks like a direct port where they didnt even try and just HOPED they wouldn't get caught.

In fairness - while there is much focus on what is similar...what is ignored is what is different (granted, from a legal perspective - that which is different is largely irrelevant, though for the court of public opinion...it matters much more).

Hex isn't a physical card game. You don't buy starter decks and boosters at a game store. It is an online MMO. You can spend your entire time playing against the computer and never playing against a human. You have various puzzles and other aspects within the game - the MtG based system is only used to resolve combat.

When you create a "character" in the game, you choose a race/class which gives certain bonuses to your digital decks (haven't dug into the specifics - but likely something like a necromancer is more powerful using black cards or some such). You can team up with other players in the game to attack larger and more powerful AI controlled opponents - effectively dungeon raids and the like. Your character levels up within the game giving additional bonuses and access to different cards. You explore within the world both in dungeons and outside them.

If you were looking for something to compare it to - it would be like any number of games from the 1980s and 1990s which utilized 3d6 for generating stats, a d20 for combat resolution and common class/races like fighters, wizards, elves and dwarves. Some were almost exact clones of D&D, others took the core of the game and added to them.

This takes the core game play of MtG and mixes in a bit of MMORPG, while creating a new world and fiction, new artwork and an entirely different market from the table top game or even WotC video game version (which is largely just playing the table top version but without the shuffling).

Do understand that Wizards may have been late to register MtG, but they produced several video games such as Duels of the Planeswalkers and Magic Online. DotP has you playing against AI whereas Magic Online has drafts, collections, etc. Both games have you constructing decks and playing the game. Obviously, both are directly based on the card game and have you literally playing with virtual cards.

There was even a 1997 Magic video game that had you wandering around as a character, running into random battles RPG-style, and then fighting it out in a game of Magic. You gained experience and cards as you won battles. (Fun fact: It was worked on by Sid Meier of Civilization fame).

Comparing like-to-like, Cryptozoic's game could be compared to these video games.

Does the complaint in fact compare the Cryptozic game to the Magic video game? I was under the impression that the complaint is about the card game look and feel and mechanics.

2 things:
1) the original "tapping" patent claims priority to an application filed in June, 1994. They're fine on those grounds.
1b) There's also an exception for public experimental use, though no one would want to rely on that.
2) I doubt it's the "tapping" patent at issue, anyway. There is at least 1 computer game patent family filed in 2005.

Seems similar to the whole GamesWorkshop vs. Cyanide incident. Cyanide effectively ported the game of Bloodbowl into a video game called Chaos League. GW sued and ended up getting a wedge of money and ownership of the title.

 Janthkin wrote:
2 things:
1) the original "tapping" patent claims priority to an application filed in June, 1994. They're fine on those grounds.
1b) There's also an exception for public experimental use, though no one would want to rely on that.
2) I doubt it's the "tapping" patent at issue, anyway. There is at least 1 computer game patent family filed in 2005.

It does have a priority date of 1994 - so it would indicate that a provisional patent was filed. However, a provisional patent expires after 1 year. The subsequent filing of the full patent application was in October of 1995 - past the duration of provisional patents. If memory serves me correctly - extensions to provisional patents were not allowed in the 1990s if the product had been released to the public (goes back to the 1 year issue).

The 2003 video game patent is a reissue of the 1997 card game patent (and were it not a reissue - it would not be applicable because of the MtG video games which they released from 1997 on). As a reissue, if the original patent is invalidated, then so is the reissue.

Those two patents are the issue - since they are what Wizard's cites in their complaint. If they want to bring other things into play - they may should things go forward...but for right now it is the original patent and the reissue of the "tapping" patent.


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Henry wrote:
Seems similar to the whole GamesWorkshop vs. Cyanide incident. Cyanide effectively ported the game of Bloodbowl into a video game called Chaos League. GW sued and ended up getting a wedge of money and ownership of the title.

Out of court settlement on that. To be honest though - GW probably paid Cyanide a chunk of change in order to purchase Chaos League...which of course Cyanide subsequently paid back to GW in the form of license fees to release Blood Bowl in 2009. It would be truly surprising if Cyanide had to pay GW a chunk of money, give up their game and then decided to get in bed with a license contract to pay them some more.

The original filing wasn't a provisional; you can tell from the serial number in the priority claim. Just a normal continuation of a utility app. The video game patent family I mentioned isn't related to the original "tapping" family; take a look at 8523648.

*edit: now that I'm actually at a computer, rather than a phone, I agree that the original complaint limited itself to the original "tapping" patent. But I still don't see any obvious errors in the prosecution timeline.

WotC's patent was based on the card game. Does it carry over to the digital one? Did they get a new/ammended patent for that?

 Janthkin wrote:
But I still don't see any obvious errors in the prosecution timeline.

That would be something for an internal review to decide more than anything else. One of the most common reasons patents are revoked is because of a paperwork mess up at filing. The original application was rejected because of a lack or response. The second application was a continuation of the first patent. If prior to filing the continuation patent they filed a foreign patent and forgot to list that when filing the second patent...it could be grounds to revoke the patent.

I've never gotten too deep into the weeds of the process and where the different parts come into play - but many people I have worked with have and it is amazing some of the things which go on (both patents granted and rejected for otherwise innocuous reasons). Given the timeline on the filing though - it would appear that there may well have been plenty of space for someone to forget to dot their "I"s and cross their "T"s.

In addition to those issues, the system which was patented (not the game itself) was developed in the late 1980s. An enterprising lawyer could probably find one of the people that played the game at college with him. Since it is doubtful that a bunch of guys goofing off in college were sure to convey that the system was being revealed under confidence for testing purposes only - that would likely count as a public disclosure and start the clock ticking for the 12 month grace period.


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 Breotan wrote:
WotC's patent was based on the card game. Does it carry over to the digital one? Did they get a new/ammended patent for that?

In a round about way. The reissue added digital media, but it doesn't extend the baseline patent.


Automatically Appended Next Post:
Without too much difficulty it would seem...thought I had seen it in the past and had a flip though my copy of "The Unofficial Story of Magic the Gathering":

"Often Garfield would just leave a deck of cards on someone's desk or in their department pigeonhole, with a not attached saying, "thanks for trying me out.""

While it is certain that a portion of that was bona fide testing - it is clear that there was no confidentiality implied with the randomness of selecting "testers". It can also be easily argued that the testing that was occurring was as much market testing as it was play testing. Given the criteria involved in determining public use versus experimental use - they sort of fail on 8 of 13 criteria with the remaining criteria being up for grabs (as those remaining criteria are not being tested for the patentable system but specific cards within the system).

 Sean_OBrien wrote:

In addition to those issues, the system which was patented (not the game itself) was developed in the late 1980s. An enterprising lawyer could probably find one of the people that played the game at college with him. Since it is doubtful that a bunch of guys goofing off in college were sure to convey that the system was being revealed under confidence for testing purposes only - that would likely count as a public disclosure and start the clock ticking for the 12 month grace period.

That would be an interesting argument to make.

One of the inherent problems of game systems is that they are never, at their core, terribly unique, and tend to be rather informal. This is one of the big reasons you really don't see many game systems patented, but rather devices associated with a game, such as the lazy susan board for Scrabble with the slots for tiles. I'm sure there is a Hungry, Hungry Hippo patent out there somewhere, and probably several related to Rock 'Em Sock 'Em ROBOTS.

 Breotan wrote:
WotC's patent was based on the card game. Does it carry over to the digital one? Did they get a new/ammended patent for that?

WotC's original "tapping" patent went through the reissue process, which allows for additional claim modifications to be made after the patent issues (although subject to additional examination by the patent office). When that happened, they added additional claims directed to computer embodiments of their games. This one is rather broad:

Claim 17 wrote:17. A method of playing an electronic card game, comprising:
designating a hand of cards from available cards on an electronic display device;
executing a turn by causing one or more cards from the hand of cards to be displayed in a playing area displayed on the display device and designating the one or more cards in the playing area by positioning the one or more cards in a predetermined orientation.

Also, many of their method claims speak in terms of "game components," which may be interpreted to include computer implementations; they will likely have a harder time with the claims that specific call out "cards."

 Janthkin wrote:

 Breotan wrote:
WotC's patent was based on the card game. Does it carry over to the digital one? Did they get a new/ammended patent for that?

WotC's original "tapping" patent went through the reissue process, which allows for additional claim modifications to be made after the patent issues (although subject to additional examination by the patent office). When that happened, they added additional claims directed to computer embodiments of their games. This one is rather broad:

Claim 17 wrote:17. A method of playing an electronic card game, comprising:
designating a hand of cards from available cards on an electronic display device;
executing a turn by causing one or more cards from the hand of cards to be displayed in a playing area displayed on the display device and designating the one or more cards in the playing area by positioning the one or more cards in a predetermined orientation.

Also, many of their method claims speak in terms of "game components," which may be interpreted to include computer implementations; they will likely have a harder time with the claims that specific call out "cards."

Yowzers! That's a broad claim. That sounds like it reads on electronic solitaire. It depends on how one construes the term "hand of cards." In any case, it unequivocally reads on some extant electronic card game, such as Texas Holdem, Bridge, Euchre. Hell, it would read on an electronic version of War.

Remember that you have to read the claims as limited by the spec. "Orientation" carries more connotations here than the bare English word suggests. It's still a very broad claim, though. (I don't, however, care enough to pay for the file wrapper & find out how they limited themselves during prosecution.)

And it certainly doesn't read on War or Solitaire; those games aren't played with a "Hand." Poker variants don't have "turns," so those are out.

Most of the other claims are more reasonable. Claim 1 is quite specific, but may be broad enough to read on both electronic & physical implementations:

1. A method of playing games involving two or more players, the method being suitable for games having rules for game play that includes instructions on drawing, playing, and discarding game components, and a reservoir of multiple copies of a plurality of game components, the method comprising the steps of:
each player constructing their own library of a predetermined number of game components by examining and selecting game components from the reservoir of game components;
each player obtaining an initial hand of a predetermined number of game components by shuffling the library of game components and drawing at random game components from the player's library of game components; and
each player executing turns in sequence with other players by drawing, playing, and discarding game components in accordance with the rules until the game ends, said step of executing a turn comprises:
(a) making one or more game components from the player's hand of game components available for play by taking the one or more game components from the player's hand and placing the one or more game components on a playing surface; and
(b) bringing into play one or more of the available game components by:
(i) selecting one or more game components; and
(ii) designating the one or more game components being brought into play by rotating the one or more game components from an original orientation to a second orientation.