Access practice tools, as well as industry leading news, customizable alerts, dockets, and primary content, including a comprehensive collection of case law, dockets, and regulations. Leverage...
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 email@example.com
To contact the editor responsible for this story: Anandashankar Mazumdar in Washington at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)