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 Janthkin wrote:
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.

Janth...I have seen claim language interpreted in absolutely bizarre ways. Those games aren't out, depending on how one chooses to interpret the claims. The problem is that although the USPTO had an interpretation in mind when the claims were granted, those interpretations are suddenly up for fresh debate in a patent lawsuit.

"Orientation" sure means something in the context of the spec, but that's absolutely a matter of debate. I have seen jurors talk for hours about what one word in a patent claim means even though the word was specifically construed by the Court. I have seen litigants succeed in getting constructions in flagrant contradiction of the spec.

In War, you divide the deck in half. Each player effectively gets their own unique deck. You draw from that deck and play a card, but who is to say that does not constitute forming a "hand" that is simply played immediately. The cards are played in a specific orientation. In fact, in a "war," the playing of a card in one orientation involves the manipulation of cards in another orientation as you deal three face down cards and then a face up card.

And Poker is totally played in "turns" according the the plain and ordinary meaning of the word and in the specific context of card games in general. In draw poker I have a hand of cards. When it is my "turn" in the current round of play I may choose to place one or more cards from that hand into the play area in a specific orientation, face down. In Hold 'Em there is an even more specific sequence of hands and play area cards and orientation.

And I bet if I went to Hoyle I could absolutely find a card game played with a standard French deck in which one has a hand, takes a turn, and places a card into a play area in a specific orientation. Hell, I do that when I play go fish with my son, or UNO.

And in any case, you can say up and down that claim 1 is specific, but I have trouble believing that prior art does not exist for playing cards out of a hand by changing the orientation of another card. And even if there is no prior art, the only elements of that claim that would be different from the prior art is the deliberate selection of a deck of a pre-determined size and the orientation change. The former reads on basically all CCGs and LCGs, none of which have paid a license to WotC that I am aware of, meaning that the patent claim is really only possibly distinguished by the inclusion of the orientation change required to bring a card or cards into play.

There's an obviousness argument to make there, especially as any Tom, Dick, or Harry is skilled in the art of card games. And it would similarly mean that, if the patent is interpreted in an appropriately narrow manner, if there's no orientation change, that's it. No infringement. I doubt very much that WotC sees it that way as from what I have heard the accused game does not involve a change in orientation to bring a card or cards into play.

So does that mean WotC is asserting patent claims that it does not have a good faith basis to believe have been infringed, or does WotC believe that its patent claims somehow extend beyond the combination of all those specific elements? If WotC does believe its patent claims cover something broader, where is the limit?

weeble1000 wrote:
And in any case, you can say up and down that claim 1 is specific, but I have trouble believing that prior art does not exist for playing cards out of a hand by changing the orientation of another card. And even if there is no prior art, the only elements of that claim that would be different from the prior art is the deliberate selection of a deck of a pre-determined size and the orientation change.

That's why this is usually called the "tapping" patent. I don't hold myself out as particularly skilled in the art of card games, but in my gaming history, I can't recall a pre-Magic card game where you altered the orientation of a card in play, in order to bring another card into play. (Note that I'm discussing Claim 1; the other claim is really broad, so unless prosecution history has loaded up "orientation" with the entire baggage of "tap to generate a resource, which is expended to bring another card into play," I haven't a clue how they got that one through twice.)

There's an obviousness argument to make there, especially as any Tom, Dick, or Harry is skilled in the art of card games. And it would similarly mean that, if the patent is interpreted in an appropriately narrow manner, if there's no orientation change, that's it. No infringement. I doubt very much that WotC sees it that way as from what I have heard the accused game does not involve a change in orientation to bring a card or cards into play.

It's a patent dispute; there's always an obviousness argument to make. I don't have any personal experience with Hex, but I have heard that it does include the tapping mechanic in some manner or other.

So does that mean WotC is asserting patent claims that it does not have a good faith basis to believe have been infringed, or does WotC believe that its patent claims somehow extend beyond the combination of all those specific elements? If WotC does believe its patent claims cover something broader, where is the limit?

And have they stopped beating their wives?!? Loaded phrasing, perhaps? There are a TON of claims in the reissue patent; until WotC files more specific allegations identifying which claims they believe are infringed, it may be a tad early to analyze.

Few operating companies (as opposed to NPEs) jump straight into patent litigation. It's absurdly expensive for anyone who isn't Apple & Samsung, and it's not like Hasbro is rolling in Monopoly money - their Q1 profits were just a tad over $40M, and Magic is one of the high-lighted bright spots in an otherwise-declining revenue stream from "Games." As is usually the case, you wonder what discussions went on ahead of filing the suit, but barring some juicy court filings, we're not likely to know.



Topic-shift: Pretty good article on this over here, summarizing the complaint.

Fair enough Janth.

That was very loaded phrasing. I have never been a huge fan of the tapping patent, and for me the saving grace has been that it hasn't really been enforced.

Now it is being enforced, and not without reason. But the nature of the combined copyright, patent, trademark, and trade dress suit makes me nervous on a fundamental level.

Wizards contends that Hex copied the “cards, plot, elements, circumstances, play sequence, and flow of Magic.”

Scary

“Players in both games are confined to the same parameters based on an initial dealing of seven cards and play progresses in a substantially identical manner. Players must efficiently use their skill and calculation to assemble their initial decks and then in suitable selection and play of the various cards.”

Scary

Wizards contends that the game play, rules, player interaction with the game, layout and arrangement, visual presentation, sequence and flow and scoring system constitute the “overall look and feel” of the game and are trade dress

Scary

Having read through that summary and having now read the actual complaint, the suit is very, very concerning to me and from a legal standpoint is fundamentally not unlike the Games Workshop v Chapterhouse Studios lawsuit. WotC even made a jury demand, which is even more concerning. If the Court does not handle this convoluted mess properly, this case has potential to be a huge mess. This is the sort of thing that should't make it to a jury without clear, direct guidance provided be the Court.

I thought trade dress meant for example Macdonalds Hamburgers shops being orange and brown or whatever colour they are, and serving hamburgers. Wizards seem to be claiming that it means the customer's interaction with the system they have made.

That would seem to mean that First Great Western Trains can sue Amtrak because when you want to go on Amtrak you have to go to the station and buy a ticket and then you get on the train and it takes you to another station where you get off.

 Kilkrazy wrote:
I thought trade dress meant for example Macdonalds Hamburgers shops being orange and brown or whatever colour they are, and serving hamburgers.

You're not wrong.

Wizards seem to be claiming that it means the customer's interaction with the system they have made.

That would seem to mean that First Great Western Trains can sue Amtrak because when you want to go on Amtrak you have to go to the station and buy a ticket and then you get on the train and it takes you to another station where you get off.

I agree with Weeble (and the article I linked above) that the complaint is over-reaching on many of these claims.

Out of curiosity, from those who have some degree of expertise in the field of IP law, which of the claims by WotC have merit? Do you believe they have a basis in the law for filing a complaint against the makers of Hex, knowing what you do of the Hex game?

(Oh, just to address something brought up earlier, I have a friend who is familiar with what's going on in this case, and he told me that WotC and Cryptozoic had been in discussions on this matter for several months, but that no mutually agreeable compromise could be found. He had no specifics to tell me about what compromises {if any} were offered by either side.)

Saldiven wrote:
Out of curiosity, from those who have some degree of expertise in the field of IP law, which of the claims by WotC have merit? Do you believe they have a basis in the law for filing a complaint against the makers of Hex, knowing what you do of the Hex game?

(Oh, just to address something brought up earlier, I have a friend who is familiar with what's going on in this case, and he told me that WotC and Cryptozoic had been in discussions on this matter for several months, but that no mutually agreeable compromise could be found. He had no specifics to tell me about what compromises {if any} were offered by either side.)

I don't really want to specifically go into which claims I think have merit. I'm not a lawyer. That said, I think WotC has a point in its suit. The suit raises an interesting question. So did the GW v CHS suit. However, the way that the complaint is framed is cause for concern.

For me, the concern arises from, as I speculated prior to even reading the complaint, WotC starting from a very broad perspective (the defendant made a re-skin of our video game) and plugging a variety of what should be very discrete legal theories into that broad framework. Hence you see a disturbing blending of the lines between various legal arguments. For example, WotC is trying to shoehorn elements of patent infringement into a claim of copyright infringement. But what elements matter for patent infringement are expressly different from what elements matter for copyright infringement. In the US, the law is specifically written with this distinction in mind.

17-102(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The statute essentially carves out the subject matter of inventions from copyright protection. Not only is this because patents have their own form of protection, but it is also related to the fundamental way that copyright protection is supposed to work.

Further complicating the issue is the fact that, as in the GW v CHS case, the plaintiff has made a jury demand. Now, I have the utmost respect for the jury system, but understanding one type of law is already very, very hard. Understanding two is harder, understanding three is incredibly hard, and most importantly properly appreciating the differences between them is an incredibly high expectation to place on a jury. The Court should make every effort to define the claims, compartmentalize them, and if it comes to it properly instruct the jury as to the law. But that also is a tough job. The appeal in the GW v CHS case demonstrates the degree to which both Chapterhouse's counsel and Games Workshop's counsel believe that the court erred in those responsibilities. And that case only involved copyright and trademark law. This case involves copyright, trademark, and patent infringement claims.

By muddling the distinctions between various claims, WotC's counsel is not doing the Court or the public any favors. As I suggested in my LEGO v Mega Bloks example, one must put serious consideration into what effect asserting a hodgepodge of claims can have. What happens if WotC's counsel is allowed to continue to make its patent-infringement-as-copyright-infringement claims? What if the Court allows those specific arguments, made in that way, to go in front of a jury? Worse, what if, as in the GW v CHS case, the Court finds affirmatively that such arguments are appropriate and instructs the jury on such a basis?

Remember that Judge Kennelly found affirmatively that a 1" x 1" drawing of a white skull on a featureless black background solely expressed on page 88 of a book filled with other such artwork was a valid trademark in use in commerce. One could certainly argue that such a ruling resulted from the complex, tangled nature of a case involving literally hundreds of separate and interweaving copyright and trademark infringement claims. Now, whether that ruling was correct is sort of irrelevant for the purposes of this discussion because such rulings by the court in the GW v CHS case are currently the subject of a pro-bono appeal by two top tier US law firms. So it is fair to say that there exists a substantive dispute about them.

The point is that things like this WotC suit don't magically sort themselves out. WotC has, for its own self-interested purposes, created a potentially problematic situation that could have a broad impact beyond WotC being upset that a company created a re-skin of its video game. Hopefully it will get sorted out well. Hopefully the suit will settle out of court before it goes very far. But the suit is now as it stands cause for concern, and WotC is solely responsible for framing the complaint in the way that it has been framed.

But, isn't it fairly common in lawsuits like this to ask for the moon while being completely content to settle for a few clouds?

Saldiven wrote:
But, isn't it fairly common in lawsuits like this to ask for the moon while being completely content to settle for a few clouds?

Asking for the moon is one thing. Specifically conflating elements of copyright and trademark infringement is something else. Note that in the Atari, Inc. v. North American Philips Consumer Electronics Corp. case [672 F.2d 607 (7th Cir. 1982)], Atari was only making copyright infringement claims. In fact, the amount of combined copyright, trademark, patent infringement suits in the video game industry is pretty narrow. The instance of combined copyright/trademark suits is also very narrow. See this link for a nice summary.

So in short, no, what WotC is doing is very atypical.