Magic Challenges Hex to Patent Infringement Game

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By Tony Dutra

Aug. 5 — Players of the game Hex: Shards of Fate infringe patents underlying the Magic: The Gathering fantasy-themed game, and Hex's developers are contributing to and inducing that infringement, according to a complaint filed in the U.S. District Court for the Western District of Washington.

On Aug. 4, the court allowed Wizards of the Coast LLC to assert indirect patent infringement charges related to the massively multiplayer online trading card games.

If the case proceeds, it could also test the patent eligibility of online games under 35 U.S.C. §101, a defense Hex developer Cryptozoic Entertainment LLC has raised.

Board game patents have been upheld as articles, but not for “games defined as a set of rules.”

Online versions of games lack the physical characteristics of articles, and the parties would have to argue whether the digital representations of those articles are ineligible “abstract ideas.”

Alternatively, the case could wind up focused on Wizards' trade dress infringement claim, because the patent at issue has already expired and Hex has yet to be rolled out to a mass audience.

Wikipedia reports 20 million Magic players as of 2015. Hex, started by Magic enthusiast Cory Jones and essentially funded by a Kickstarter campaign, is still only available in a beta test version, with an official launch planned later this year.

Wizards filed its first complaint in May 2014, alleging copyright and trade dress infringement as well as direct patent infringement.

U.S. Patent No. RE 37,957 covers both the card game itself and methods of playing it.

Wizards' August 2014 amended complaint addressed Hex's motion to dismiss, but otherwise kept the same claims.

The '957 patent expired even before Cryptozoic filed its response a month later.

“Fearing competition in the trading card game industry, and frantic about the loss of its monopoly position due to the expiration of its patent two months ago, Wizards seeks to eliminate Hex: Shards of Fate through litigation rather than fair marketplace competition,” the response said.

Cryptozoic denied “direct or indirect infringement” and argued that the patent claims were invalid, including as unpatentable under Section 101.

The parties parried over disclosure of the identities of Hex users, and their purported settlement allowed Wizards to amend its complaint one more time to assert inducement and contributory infringement theories.

Cryptozoic still fought Wizards' right to make the amendment, but the court's Aug. 4 decision favored its filing on all relevant factors.

The court gave Wizards two weeks to file the second amended complaint. It dismissed the copyright claims—without opposition by Wizards—in the same order.

To contact the reporter on this story: Tony Dutra in Washington at

To contact the editor responsible for this story: Anandashankar Mazumdar in Washington at

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