Welcome back to Legal Geek. This week, we continue our review of the legal battle brewing between Wizards of the Coast and Cryptozoic by looking at the merits of the patent claims against the game Hex.
Let's begin with the basics: patents that are issued by the USPTO are effectively 20 year monopolies rewarded for innovation in the arts and sciences, but the monopoly is limited to just the specific numbered claims at the end of a patent. The difference between what is described in a patent and what is actually claimed can be very dramatic, as the claims are typically narrowed significantly during prosecution.
The urban legend is also true that Richard Garfield, the designer of Magic, did procure a patent in 1994 for various basic things like deckbuilding and tapping cards that are now a commonplace thing in trading card game designs. That patent of legend is what Wizards is claiming is infringed by Hex.
There are 57 claims in the Magic patent, but four of them stand to me as real problems for Hex. The first two recite a card game and a computer card game requiring only obtaining a hand of cards from a supply, playing a card, and designating a card by rotating it to a different orientation, AKA tapping. That's all, and Hex certainly seems to do those few steps.
Another of the broad claims recites obtaining a hand of energy/mana components and effect components, then using the energy components or mana to play the cards. Again, very basic TCG rule sets. The last of the broadest claims describes selecting a library of cards and displaying it on a computer screen to one user, then executing turns of a game and showing the cards played on multiple computer screens.
Claim construction is a process for deciding how to interpret these legalese claims, and that process plus discovery of documents and information from each party can be very complex and somewhat unpredictable. However, it seems likely that the close clone of rules and operations that Hex is compared to Magic will infringe at least those broad claims, if not more.
So Hex will likely need to fall back on the other defense to patent infringement, that being arguing that Wizard's claims are too broad or vague and therefore invalid. Of course, that will require finding prior art from before 1993 on these points, and the TCG market was not really in existence before Magic, so that could be difficult.
Although this patent will expire later this month, Wizards is still entitled to damages if this claim is successful for the large kickstarter profits and recent profits made by Hex. Plus, fighting over patents in court is ridiculously expensive, even by litigation standards. Unless Cryptozoic finds some invalidating prior art nobody else has located over the last 20 years, this infringement claim likely will go in favor of Wizards.
Bottom Line: At least on this claim, the makers of Hex should likely settle as soon as possible. The expected loss on the patent claim could be devastating, if not fatal to this game.
Next week, we will finish this subject for now by looking at the copyright and trade dress claims, which thankfully are a bit more straightforward.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
No comments:
Post a Comment