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WizKids Sues Wizards of the Coast over Game Patent

Zonk posted more than 7 years ago | from the uncomfortable-gen-con-this-year dept.

104

An anonymous reader writes "WizKids Games (makers of the HeroClix games) is suing Wizards of the Coast (makers of Magic: the Gathering), seeking judgment that their Pirates game does not infringe on a recently granted patent. From the article: '[T]he suit claims that WOTC contacted WizKids via a letter in May 2004 concerning the filing of the patent, and that WOTC asserted that WizKids Pirates game fell squarely within many of the proposed claims of the pending patent application. WOTC warned that when the patent [was] issued, WOTC would have the right to sue WizKids for an injunction and damages. WOTC threatened that it would take legal action against WizKids if or when a patent was allowed if WizKids did not cease and desist selling its Pirates game.' The suit asks the judge to declare that the Pirates game does not infringe and seek to stop Wizards of the Coast from pursuing any legal action. The patent in question is for a 'Constructible Strategy Game,' where players build models from punch-out cards sold in booster packs. The Pirates game seems to fit the patent description perfectly."

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umm... prior art anyone? (1)

tenverras (855530) | more than 7 years ago | (#19395167)

Ok, I'm no buff about the games or companies mentioned, or on the patent system, but if the Pirates game was around before the application was submitted, would that not count as prior art and void the chance of a patent? Especially since WOTC sent a letter to WizKids about it...? Just saying is all

Re:umm... prior art anyone? (4, Informative)

Rob T Firefly (844560) | more than 7 years ago | (#19395197)

It wasn't. Wizkids released the Pirate game in July of 2004, [wikipedia.org] while WOTC filed their patent application in October 2003. [uspto.gov]

release VS developed/conceptualized (1)

phorm (591458) | more than 7 years ago | (#19396929)

That's a release date. There's a lot of things that can lead up to that. So it's still possible that in some form or other, the Pirate game existed before the patent, even if it wasn't on the shelves yet.

Development time doesn't really count. (1)

mbauser2 (75424) | more than 7 years ago | (#19402729)

Even if WizKids was working on the idea before it was patented, it wouldn't help them much. If 2 companies independently develop an idea whoever patents it (or gets it to market) first wins. That's just the way patents work in the United States, so the courts won't be swamped with "I invented that in secret!" lawsuits. (In some countries, it's worse: Whoever patents first wins, even if somebody else can prove they invented the idea.)

At the very least, WizKids would have to show that they (or anybody besides WOTC) published an explanation of CSGs before WOTC patented the idea. So far as I can find, the earliest public references to "Pirates" are from March 2004, several months after WOTC's patent application was filed. If that's true, WizKids is stuck hoping that somebody else wrote about CSGs, or produced a game that's close enough to invalidate the parts of WOTC's patents that WizKids is accused of violating.

If WizKids can't find enough prior art to undermine the patent, their options become increasingly more difficult: convincing a judge that the idea isn't innovative enough to deserve a patent, convincing a judge that WOTC didn't really develop the idea independently, or something even weirder. Those are much harder arguments to prove than prior art.

Re:umm... prior art anyone? (1)

Khyber (864651) | more than 7 years ago | (#19400029)

FILED patent != GRANTED patent.

When was the patent actually GRANTED?

Re:umm... prior art anyone? (1)

paladin217 (226829) | more than 7 years ago | (#19400459)

Actually, the law was changed in 1995 so that the owner of a patent can enforce the patent for 20 years starting from the earliest claimed filing date of the application. The issue date is completely irrelevant.

Re:umm... prior art anyone? (1)

ubrgeek (679399) | more than 7 years ago | (#19400703)

I don't have Flash installed, so I can't see how the game really works, but would Steve Jackson's old Car Wars (and Ogre and whatever) games count as prior art? As I recall, there were cars and whatnot that were a key component of the game (so much so that you couldn't play without them)...

Re:umm... prior art anyone? (1)

wmshub (25291) | more than 7 years ago | (#19403849)

The patent covers things that are physically assembled from parts. In Car wars, etc., you could design your playing pieces on paper, but the little counter on the board didn't change when you added a different component, so it wouldn't work as prior art.

Even though Car Wars doesn't work as prior art, the patent is still a dumb patent. Basically, once you have car wars (or any of a large number of earlier design-your-piece games), you just say "Wouldn't it be cool if instead of just writing down 'add a machine gun' we attached a little paper machine gun to our little paper car?" To me that is a pretty obvious next step, but apparently the patent office things it is a monumental leap of brilliance.

Re:umm... prior art anyone? (1)

lgw (121541) | more than 7 years ago | (#19404007)

The claim is somewhat more complex: you can't add the MG to your car unless you have the collectable MG card. This is a different business model entirely from Car Wars: basically it's combining the Car Wars-style design-your-own game mechanic with the CCG "you have to buy dozens of booster packs to get anything useful" business model. I can't think of an older game with this combination (some minatures rules came close, but if the patent is narrow enough to only cover a CCG that would be OK).

Re:umm... prior art anyone? (1)

KDR_11k (778916) | more than 7 years ago | (#19408935)

What I'm thinking of this is "standard tabletops with the figures sold in random boxes". That you assemble them from paper is IMO a detail that doesn't really change much. Imagine e.g. Warhammer* had its miniatures packed in boxes with no clue as to what is inside (think Kinder Surprise) and no stand-in token rule (i.e. you can't just use a coin if you don't have the miniature, AFAIK most tabletops have a rule permitting such tokens). Whether you save money by making those miniatures out of paper or whatever (e.g. the Battletech starter box comes with cardboard cutouts instead of miniatures and trial versions of tabletops don't even use cardboard) shouldn't be of consequence.

Of course going by USPTO rules using paper instead of plastic and random boxes for tabletops instead of collectibles or CCGs is enough "novelty" to be considered a valid patent.

*=I'm not sure if any of the Warhammer games have special weapons be simple part changes on a standard miniature or if you need a whole new miniature to trade e.g. that heavy bolter for a plasma rifle.

Re:umm... prior art anyone? (1)

fuliginous (1059354) | more than 7 years ago | (#19410743)

What about Game Of Life where if you pick the card you add a child or wife to your car. Or Monopoly that once you have the set you can put houses on plots. Or Buckaroo where there are components on the horse?

Apologies I haven't been to read the relevant materials and am just inferring from the thread.

Re:umm... prior art anyone? (1)

Neo_piper (798916) | more than 7 years ago | (#19395345)

True enough but being the figurative 600 pound Gorilla of the gaming industry (or possibly Great White Shark, because of all the random bits in its stomach) WotC can pretty much just run out the clock (or bank) on any other "traditional gaming" company in it's way.
Yeay Capitalism where might makes right

Re:umm... prior art anyone? (2, Interesting)

kebes (861706) | more than 7 years ago | (#19396425)

Just thinking out loud here... but it seems to me that the patent system seems to forget the "fundamental point", which is that patents are supposed to do some good for society at large. The patent system has (theoretically) requirements about "prior art" and "obviousness." But to me, even this is not enough. Patents should also be judged based on whether they have "value added" (as compared to not giving out the patent).

In many ways, the original purpose of patents was to prevent trade secrets. So the idea is that we (society) will give a limited time monopoly in exchange for implementation details, which might otherwise have been hidden from us. But what "implementation detail" is being hidden from us in a "1-click" patent or even a "constructible card game" patent? The answer is: nothing. So why should society bother giving out a monopoly? The "first mover" advantage in most cases is enough for you to make money off of your idea. Only in the case of a really subtle and complex idea is it "worth it" for society to trade a monopoly in exchange for implementation details--because otherwise there is nothing society really gains.

I know another aspect of patents is to encourage people to invest time, effort and energy into an idea/research (e.g. drug companies). I would say that's fine too--there again there is a tangible "value add" for society.

I don't really have an answer for how to implement this, but I think that somehow patents should be judged not merely on "obviousness" and "prior art", but also on "is this a good deal?" The current system assumes that if you have an idea, you get a patent. Instead perhaps it should be a contract system, where each patent application states: (1) what they want from society (a monopoly), and (2) what they are giving back to society (implementation details, etc.). If it's a bad deal, the application is rejected (even if the idea is good).

Done in this way, perhaps patents for things like drugs could be granted ahead-of-time. So basically a contract between a drug company and the government that says: "The government agrees to provide patent protection to the results of the proposed research, since the research is deemed to be of value to society and unlikely to be undertaken without patent protection."

Yes, there are problems with individually-negotiated patents, such as creating yet another system prone to bribes and manipulation. Just thinking out loud; suggestions welcome.

Re:umm... prior art anyone? (1)

k_187 (61692) | more than 7 years ago | (#19396521)

The US is a first to invent system. Therefore, if I come up with something at point x in time and you come up with the same something and obtain the patent at point x+1. My creation is still prior art invalidating your patent. In other words, the time of application has nothing to do with prior art. Also, as another poster as pointed out, WotC's application was before WizKids'.

The legal definition of "invent" (1)

mbauser2 (75424) | more than 7 years ago | (#19403275)

Time of application does factor into this.

True, the United States has a "first to invent" patent rule, but the government's definition of "invent" is bit tricky. The court precedents say an invention isn't really "invented" until the inventor either files a patent, practices the invention (that is, makes or sells something that uses the invention), or publishes a detailed description of it.

To oversimplfy that a bit: It's not legally an invention until the public knows about it. Inventing something in secret doesn't secure the inventor's rights.

And, as you point out, the WOTC patent was filed at least 5 months before WizKids demonstrated "Pirates" at a trade show. If WizKids wants to say they invented CSGs (which doesn't seem to be their argument, by the way), they need to prove that there was a public record of the invention (by anyone who isn't WOTC) before the patent was filed.

At the moment, WOTC has the prima facie evidence of invention, because they were the first to prove they were trying to invent something. Which sounds crazy when I phrase it like that, but that's the way it works.

Sad (1)

bladesjester (774793) | more than 7 years ago | (#19395175)

I remember when WOTC was satisfied to just make good games. Now it seems like all they do is try to keep anyone else from making games.

And, call me weird, but I seem to recall all sorts of "constructable strategy games" when I was a kid. Most of them required assembly of pieces. There should be scads of prior art...

Re:Sad (1)

SQLGuru (980662) | more than 7 years ago | (#19395363)

Mousetrap. You constructed the trap. The strategy was to not get caught. Prior art?

Layne

Re:Sad (1)

Red Flayer (890720) | more than 7 years ago | (#19396249)

Mousetrap. You constructed the trap. The strategy was to not get caught. Prior art?
Mousetrap didn't have booster sets, did it? That's part of the patent.

Re:Sad (0)

Anonymous Coward | more than 7 years ago | (#19399705)

This is /. He didn't RTFP or TFA.

Re:Sad (1)

innocent_white_lamb (151825) | more than 7 years ago | (#19408057)

What about a Meccano set? I had one when I was a kid that belonged to my dad when he was a kid. And we bought more "sets" to add to it. I remember getting a special set to make a clock out of. (It wasn't much of a clock.)

Re:Sad (3, Informative)

Applekid (993327) | more than 7 years ago | (#19395457)

I remember when WOTC was satisfied to just make good games. Now it seems like all they do is try to keep anyone else from making games.

You have Hasbro to thank for that, of which Wizards is a wholly owned subsidiary. While generally considered a big payday for a company and/or salvation from bankruptcy (I don't recall how they were doing financially in 1999, other than the Wizards store nearby was open for like a whole 3 months before closing), it's a little like selling it's soul to the corporate giants.

Re:Sad (0, Troll)

H3lldr0p (40304) | more than 7 years ago | (#19395941)

Considering the goth sex orgies [salon.com] that were going on instead of the creation/maintanence of good games, they weren't doing so hot.

Re:Sad (0)

Anonymous Coward | more than 7 years ago | (#19398557)

Considering the goth sex orgies [salon.com] that were going on instead of the creation/maintanence of good games, they weren't doing so hot.

That depends on your point of view - the above sounds like a game I might be very interested in playing!?

Re:Sad (aka, bullshit) (0)

Anonymous Coward | more than 7 years ago | (#19395757)

Sure, if you buy your cards at 7-11. Retail is only something like $3.49 but you can find them MANY places for less than $3 a pack. You can use the change you save to buy a clue. If you don't like WOTC, fine. If you don't like CCG's or people that play them, fine. But don't spread BS lies to try to make some sort of point. Sales of WOTC games, especially M:TG, are FAR from declining. asshat

Re:Sad (aka, bullshit) (1)

grapeape (137008) | more than 7 years ago | (#19405377)

Really where are the making up the sales then? 10 years ago I didnt know anyone who didnt play Magic...now I dont know anyone who does.

Re:Sad (aka, bullshit) (1)

Lehk228 (705449) | more than 7 years ago | (#19406091)

pokemon

Re:Sad (1)

uncledrax (112438) | more than 7 years ago | (#19399883)

"I remember when WOTC was satisfied to just make good games. Now it seems like all they do is try to keep anyone else from making games"

Say what now? .. when was WOTC satisfied with just making good games? Oh right.. up until they realized they have a gold mine in MTG.. so we'll call it '95-'96.

I lost faith in WOTC as a well-mannered company when they released the 15915th expansion for MTG.. at that point it became painfully obvious they were in it for the bucks.. whcih is fine.. it's the goal of a company.. and kudos to them for bailing out TSR..

oh well.. there are still a few smaller shops that work to publish quality over quanitity.

(I miss my 80's era FASA.. sniff sniff)

Another (2, Interesting)

teflaime (738532) | more than 7 years ago | (#19395209)

bad patent. Big surprise there. There have been games based on punch out models for decades.

Re:Another (2, Interesting)

geekoid (135745) | more than 7 years ago | (#19395679)

Bad patent? It is a perfectly good patent. There is nothing wrong with it.

The Patent Game (1)

ReptilianSamurai (1042564) | more than 7 years ago | (#19397895)

This gives me an idea for a game: Patent! Build up a corporation, design products to build up cash. Be the first to patent common knowledge and screw the competition in the ensuing legal battles, forcing them to hand over portions of THEIR cash, or drop products entirely! But be careful, if your patent is too common and ridiculous, you'll lose the legal battle and be forced to hand a portion of YOUR cash to your opponent.

Comes complete with punch-out models (patent pending).

Good news! (0)

Anonymous Coward | more than 7 years ago | (#19395249)

Prior art [ebay.com] invalidating several of the patant claims will only cost 24.99 plus 14.99 s&h. I seem to recall a Star Trek and Star Wars game that operated in similar fashion.

Patent Troll with 3D8 Battle Axe (2, Funny)

BillGatesLoveChild (1046184) | more than 7 years ago | (#19395277)

Too bad WOTC (you may know them as Hasbro) don't choose to focus on their core competency. You know: "making games", instead of these lame ass lawyer tricks.

"No Sir, It's a $25 fine for reversing over a patent troll in a supermarket car park. Just mail it in. "

Re:Patent Troll with 3D8 Battle Axe (2, Insightful)

Phanatic1a (413374) | more than 7 years ago | (#19395639)

Too bad WOTC (you may know them as Hasbro) don't choose to focus on their core competency. You know: "making games", instead of these lame ass lawyer tricks.

TSR's downfall coincided tightly with their choosing to focus on lameass lawyer tricks instead of making games.

And with publishing ridiculous amounts of totally crap paperback novels.

Re:Patent Troll with 3D8 Battle Axe (1)

asninn (1071320) | more than 7 years ago | (#19409643)

No, TSR's downfall started in 1974 when D&D was released for the first time.

(Boy, is that going to make me unpopular... but it needs to be said. Most of (A)D&D is unimaginative crap; not all of it, certainly, but enough to turn me off.)

Re:Patent Troll with 3D8 Battle Axe (0)

Anonymous Coward | more than 7 years ago | (#19398243)

>kill troll with art

Which art do you mean? The fine painting or the prior art?

>prior

You can't see any prior art here!

Chicken before the egg? (0)

Anonymous Coward | more than 7 years ago | (#19395295)

What you're saying is that WizKids is suing WOTC to prevent WizKids from being sued by WOTC.

Only in America ... /sigh.

Compare "v. Attorney General" suits (2, Informative)

tepples (727027) | more than 7 years ago | (#19398429)

In the United States, lawsuits to get a federal law ruled unconstitutional are filed against the sitting Attorney General in his official capacity, seeking an injunction against enforcement of the law. Examples include Eldred v. Ashcroft. Seeking clarification in ad less risky than breaking the law and then gambling with one's business or with one's freedom on whether or not it is overturned.

Timeline from the comments of original article (5, Informative)

Anonymous Coward | more than 7 years ago | (#19395391)

If you read the comments of the article you'll see someone posted a timeline.I suspect there's a little more involved here than a patent dispute.

2002 - Wizards designs, but never releases, a game called "Punchbots"

2002 - Wizards files a patent application on constructible strategy games based on Punchbots

Fall 2003 - WOTC R&D Design Lead Mike Selinker leaves Wizards of the Coast and begins designign a new game for WizKids

March 2004 (GTS '04) - WizKids announces it is publishing a revolutionary new Mike Selinker game called "Pirates of the Spanish Main", the first in a "new" category called "constructible strategy games"

May 2004 - Wizards of the Coast sends a cease & desist letter to WizKids warning them not to publish POTSM

July 2004 - WizKids publishes POTSM

Correction (3, Informative)

Rob T Firefly (844560) | more than 7 years ago | (#19395529)

Wizards' patent was filed in October 2003, [uspto.gov] not 2002. When exactly did Selinker leave Wizards?

Re:Correction (0)

Anonymous Coward | more than 7 years ago | (#19402465)

Take a look a little further down, under "Parent Case Text." This patent claims priority to an earlier application filed October 2002. Therefore, October 2002 is the effective filing date.

WizKids was first (0)

Anonymous Coward | more than 7 years ago | (#19395429)

I could be mistaken but I do believe that WizKids Pirates game did come before anything Wizards was doing with Constuctable Card Games. Would that fall under prior art?
When I saw that WotC (Wizards) was going to publish a Tranformers 3d card game, I just thought WotC was jumping on the success bandwagon that WizKids has had with their Pirates game. Now I'm finding out that WotC has the patent on such a game format?!?! And wants to stop a successful game from being made? Yeah, so they can make their own Pirates 3d card game obviously - or something to the same effect.
I have friends who enjoy the Pirates game and it would be very sad indeed to see it die such an undiginfied "low-blow" death.

Re:WizKids was first (1)

ThePiMan2003 (676665) | more than 7 years ago | (#19396439)

Actually you are mistaken. Wizards filed the patent before Pirates was invented.

Re:WizKids was first (0)

Anonymous Coward | more than 7 years ago | (#19396885)

That doesnt matter, they stole the idea of MTG from me when I was a child. the fact is, WOTC has a history of stealing ideas from children and claiming that they are the creative ones so I am inclined to belive that they would steal from other children as well.

Re:WizKids was first (1)

ravenshrike (808508) | more than 7 years ago | (#19399901)

No, they filed the patent before Pirates was released.

Re:WizKids was first (1)

Toonol (1057698) | more than 7 years ago | (#19400175)

I don't believe you know that for sure.

Wizards filed the patent before Pirates was published. When Pirates was invented is the important date, and if it can be proven to be before the patent filing, it will have status of prior art.

Insane Patents (2, Insightful)

Murrdox (601048) | more than 7 years ago | (#19395477)

Why even FILE patents like this? I'm increasingly disgusted that everything creative has to be patented so that someone can make money off of it. Whatever happened to sharing a great idea, and making new and better things with it?

If I filed a patent for a "Rulebook about roleplaying games. This rulebook would contain all rules necessary to play said game. Additional rulebook supplements would also be referenced" and made sure no one else could make any RPGs besides MINE, what the heck would the RPG market be like?

So WizKids made a punchcard pirate game. Big deal. Wizards, if you want to make a punchcard game that comes in booster packs... go ahead and make one. If it's a GOOD game, it'll do better than the WizKids game. Why do you have to SUE over it?

*Answer: Because you're hoping that WizKids can't afford a lawsuit, and will eventually be forced to sell you the licenses to Shadowrun and Battletech, that's why.

Re:Insane Patents (3, Insightful)

geekoid (135745) | more than 7 years ago | (#19395579)

Except rule books do exist, have existed forever. So no, you could not patent that; however, pumch-out contruction pieces decribed in the patent have not. AFAIK. They're certianly simple, but not obvious. I distinction that is often lost on slashdot.

Actually answer:
Because it is their idea and they have the privledge to control it until the patent expires.
All patent cases are more complex then they seem on slashdot, but if they were told about the pending patent, and sent description of the patent, and still violated it, then they get whats coming to them.

Re:Insane Patents (1)

WNight (23683) | more than 7 years ago | (#19400257)

Punch-out construction pieces have indeed existed well beyond patent lifetimes, as puzzles, mazes, etc. For them to be actual game pieces and come in booster packs. Well, that certainly is patent-worthy...

The problem is that people ask the wrong question to judge obviousness. We ask "Is Z obvious to you?", but "Given the goal of X and constraint Y, what would you do?" is the question we should ask. If something is obvious enough that anyone skilled in the industry can come up with Z and make it work, what exactly do we get from this patent?

This isn't a technology patent in *any* way, it's a business model patent.

And frankly, anyone who has or wants a business model patent should be lynched. For the good of everyone else. "Oh noes, if the government doesn't forbid anyone else doing anything like this, I shall surely be lost!" What a way to rest on the laurels of your one good idea instead of actually trying to compete in an open market.

If patents actually did anything they claimed to keep a little inventor safe it might be different. Instead patents are only of use to patent trolls and companies with a ton. For everyone else it's merely a an impassible minefield. Make an interesting product and get sued for violating six submarine patents on stuff like 1-click (what were cookies for, if this is so novel?), XOR-drawing (Um, how else on B&W displays?), etc, etc.

Re:Insane Patents (1)

innocent_white_lamb (151825) | more than 7 years ago | (#19408069)

Barbie doll cutout books. You cut out the doll from the cardboard cover, then cut out the clothes on the inside pages and folded them over the cardboard doll cutouts.

Re:Insane Patents (1)

IgLou (732042) | more than 7 years ago | (#19401277)

Oh really? If a set of rules were out on the internet for playing a game with your hockey cards (and we played them back in they day 30 years ago) does that make your hockey cards a collectible card game? Go ahead and argue that there are no rules packaged with the cards but the reality is that the same can be said for a booster pack. The idea was nothing original they're bloody trading cards! Is the game original!? NO! It's just the style of play and the mechanics was original. You can protect your game in it's mechanics but much like the the CCG patent this constructible game patent seems to be too broad.

The other thing to consider is that patents, trademarks, copyrights, and etc have an impact on society and it's supposed to be up to society when it's beneficial to grant or repeal these things. That too, isn't always clear. Can an organization sit on a patent or copyright or some other piece of IP and not develop it? Technically yes. Is that's what's best for society? No, all current ideas are built on previous ideas this is how we develop culturally.

The patent should never have been granted.

Re:Insane Patents (0)

Anonymous Coward | more than 7 years ago | (#19395585)

The answer would be because a game was created at WOTC, a person left the company to work for a competitor, and magically that same person announces a game very similar in concept to the one developed at WOTC.

On the surface this looks like a patent issue but it's really an issue of someone stealing ideas from one employer and selling them from another. (IMO)

Re:Insane Patents (1)

Jack9 (11421) | more than 7 years ago | (#19396063)

It's because they have successfully defended their patents regarding CCGs and the concept of "tapping" for years. If you can claim complete ownership of those ideas, you're not afraid to attack anything you can get a patent for. WotC is just another example of how the US patent system is broken.

Re:Insane Patents (1)

miskatonic alumnus (668722) | more than 7 years ago | (#19396331)

It's because they have successfully defended their patents regarding CCGs and the concept of "tapping" for years.

They don't own the concept of tapping. Many card games feature rotation of a card by 90 degrees to indicate some effect --- you just can't call it tapping.

Re:Insane Patents (1)

tepples (727027) | more than 7 years ago | (#19398825)

Many card games feature rotation of a card by 90 degrees to indicate some effect --- you just can't call it tapping.
Which card games are these?

Re:Insane Patents (1)

Whyte Panther (868438) | more than 7 years ago | (#19399839)

YuGiOh calls it "defense mode", Naruto CCG calls it "injured", I'd be harder pressed to name a trading card game that doesn't use a sideways card as a visual reminder of some state.

Re:Insane Patents (1)

miskatonic alumnus (668722) | more than 7 years ago | (#19400941)

For example:

L5R --- bowing.

Call of Cthulhu --- exhausting

Re:Insane Patents (1)

Jack9 (11421) | more than 7 years ago | (#19402801)

Tapping is precisely the name they own. The fact you call the concept "tapping" yourself, reveals the ubiquity of it. It was a dilluted patent when it was first enforced but somebody got paid to deny that.

Re:Insane Patents (1)

kebes (861706) | more than 7 years ago | (#19396231)

I'm increasingly disgusted that everything creative has to be patented so that someone can make money off of it. Whatever happened to sharing a great idea, and making new and better things with it?
Even that is a false dichotomy. It's not a matter of "patent and make money" versus "release for the good of the world." Rather it should be "patent and make money" or "don't patent and make money" or "release for free for the good of the world" and so on. The current mindset in business is that the only way to make money off of an idea is to patent it--which is ridiculous. I fully agree that people should be able to commercialize their ideas. No one disputes that. But patents are not a automatic road to profit: on the one hand, most patents don't end up being commercialized; and on the other hand, many good ideas create massive profits without being explicitly patent-protection.

The present obsession with patent-protection (or other legal protection) of ideas is a sickness that is stifling a great deal of creativity, and a great deal of economic productivity. As you insinuated in your post, companies should be content with just making good products. It doesn't matter if your competition sells a similar product. If you are making the best product at the best price, then you will ultimately turn a profit. And if you are not able to give the customers what they want, then tough luck: maybe someone else will, and they will reap the rewards.

Re:Insane Patents (1)

dougmc (70836) | more than 7 years ago | (#19396341)

Why even FILE patents like this?
I realize that this was a rhetorical question, but I can give you a real answer.

At the very least, you file for patents like this to make sure that you beat anybody else who files for patents like this. It's called a defensive patent [wikipedia.org] , and even if you never intend to use it against anybody else, it prevents somebody else from patenting the same thing later and then trying to attack you with it.

Now, obviously the patent in the story isn't being used defensively, but do be aware that they do exist. And they're not really any different than other patents -- it's just what you intend to do with them. And yes, you could have a portfolio of defensive patents, then go bankrupt, have your patents sold, and then the new owner goes on the offensive with them ...

Why do you have to SUE over it?
It's not fair. It's not right. It's business. They're doing what they think will maximize their profits.

Re:Insane Patents (0)

Anonymous Coward | more than 7 years ago | (#19396691)

It seems to me that the major problem with patents is their generality. I think that good ideas should be rewarded, but a patent on a game where you punch out cards and build stuff to play a game seems a little broad. What about board games that have card board cards with game tokens that you punch out to play the game? I've even seen ones where the pieces fit together to build stuff! It just seems that with that methodology, and then there shouldn't have been any video game systems other than pong available for 20 years after pong was introduced on the home console. Here's the patent, an electronic device that users can interact with on a television in a video format for entertainment. That would cover all video games. I suppose that this is the same debate over software patents though. Is "1-click shopping" really a patentable idea? or is just a particular implementation of it protected? Glad I'm not a legislator, that's a toughie!

Re:Insane Patents (0)

Anonymous Coward | more than 7 years ago | (#19397995)

I'm increasingly disgusted that everything creative has to be patented so that someone can make money off of it.

I am disgusted too, particularly with the oft-repeated lie that the only way to make money off an idea is to patent it.

People were making money off ideas and creative works long before intellectual property patents became so popular. There is a slippery-slope fallacy at work here...something along the lines of "if I cannot ensure that I and only I make every penny that is ever made off this idea, then I won't be able to make any money at all off of it."

Irrational reasoning used to justify economically harmful laws disgusts me.

quit (4, Insightful)

theTrueMikeBrown (1109161) | more than 7 years ago | (#19395509)

I remember back when Wizards made engaging games that didn't cost too much. Now-a-days a booster pack of 15 cards cost $5.00. Perhaps this frivolous lawsuit is because the company's sales are declining. If so, they aught to consider lowering prices instead of shenanigans like this. I quit playing because of insanity such as this.

Re:quit (1)

bladesjester (774793) | more than 7 years ago | (#19395629)

Even when the boosters were only about $3 each, they started sticking it to people when they decided to make even more sets a year than they did before.

For the longest time, the only reason I kept playing at all was because I was winning local tournaments and that was keeping me in new cards. Otherwise, it would have been nearly impossible to compete with people who were literally spending hundreds of dollars a month on cards.

Re:quit (1)

_Hiro_ (151911) | more than 7 years ago | (#19395655)

M:TG boosters are up to $5 for a 15-pack? WTF?

When I started, the most sought-after expansion (that was still within reason) was The Dark... Out of print and rapidly running out of sealed boxes, they were a premium at $5 per pack! Fallen Empires (Which friends of mine joked were worth more as toilet paper than as actual cards) was everywhere at $0.75 - $1.50 a pack. (I had one guy selling me Fallen Empires at buy-one for $1, get two free.)

You can't tell me that in 10 years the price of ink and cardboard has more than doubled...

Re:quit (1)

bladesjester (774793) | more than 7 years ago | (#19396143)

Fallen Empires caught a lof of flack where I was too, but there were actually quite a few decent cards in it. Several of them were involved in my tournament wins there.

The storage lands were handy, Hymn to Tourach was great, Goblin Grenade came to be dreaded when I used it, Mindstab Thrull was fun (can you tell I often played discard/deck depletion decks?), Soul Exchange was just plain nasty...

It was a really under-rated set. The problem is that most people just didn't get how to put together a decent strategy.

Re:quit (1)

Red Flayer (890720) | more than 7 years ago | (#19396569)

Fallen empires made some decks seriously sick, but it was specifically targeted to enable the creation of certain kinds of decks -- like the merfolk denial deck. The Seasinger was a punishing card.

Re:quit (2, Funny)

MBGMorden (803437) | more than 7 years ago | (#19401221)

I was in the same boat. Back when I started (I was in high school so we're talking 9-10+ years ago) the latest and greatest expansion was "Homelands". I remember those being around $2.50 per pack, and indeed, Fallen Empires were anywhere from $0.75 to $1.50. I bought LOADS of those cards. Not all of them really sucked too bad. :).

Problem is, I live(d) in a rural area. There were only 4-5 of us that played, and our parents became convinced that the game was "satanic" and we were all forced to quit playing (most of the other guys ended up being given an alternative Christian CCG to play instead). I was the only one who wasn't forced to also destroy or sell their cards, so I still have all of my collection from back then. These days with the $4-$5 per pack prices I buy a booster pack every other month or so for artwork. Haven't played in years.

Re:quit (1)

_Hiro_ (151911) | more than 7 years ago | (#19402705)

Wow... if "Homelands" was 10 years ago, I quit almost 8 years ago...

*checks release dates* I started right when 4th Ed came out, pre-Ice Age... So Early Spring of 1995 was when I was getting Fallen Empires at 3 for $1, and Dark at $5 per pack.

Re:quit (0)

Anonymous Coward | more than 7 years ago | (#19396395)

WotC must be doing something right for people to still be playing MTG now, but I got fed up the fact that I essentially had to rebuild my entire deck very frequently becase they banned the older sets from sanctioned play. The increasing costs of booster packs with each set didn't help with that aspect. While it was nice that it kept the game "fresh" by making sure that we weren't just seeing the same old decks and cards year after year, it was expensive to keep up.

My options were to either drop lots of money for several boxes of boosters when a new set came out, or to drop lots of money buying singles of the essential cards from the secondary market. And even if I did the former, I would often need to do the latter as well to a certain degree if I wasn't "lucky" enough to get enough of the more powerful rare cards that I needed to complete my deck.

The fact that they banned by old cards from tournament play meant that while they may have had high value to some collectors, in practice it became more difficult to sell them back into the secondary market.

Re:quit (0)

Anonymous Coward | more than 7 years ago | (#19396615)

bullshit. MSRP is only $3.49 or $3.79. Something like that. But unless you're an idiot and buy your cards at 7-11 you won't pay near that. You can find them in MANY places for less than $3 a pack. WOTC isn't hurting at all - especially when it comes to CCG's.

(btw, Fallen Empires was cheaper as it only had 8 cards in a pack.)

Re:quit (1)

ShadowsHawk (916454) | more than 7 years ago | (#19409407)

No need to quit entirely if you have a couple of friends who enjoy playing. I use Magic Suitcase (http://www.magicsuitcase.org/) to create random booster packs. We then print these out using the 'print proxy' option. You can find the pictures if you search around google a bit.

Whiz Kids are suing?.... (3, Funny)

Dogtanian (588974) | more than 7 years ago | (#19395555)

...I always wondered what happened to them after their 80s TV show finished.

How quickly they forget (1)

Rogerborg (306625) | more than 7 years ago | (#19395563)

The embryo WotC were nearly put out of business by (the then relatively huge) Palladium suing them over trademark infringement. I guess WotC (well, Hasbro) have since decided that kicking the shit out of little companies is fun, so long as you're the one wearing the boots

Re:How quickly they forget (1)

BeeRockxs (782462) | more than 7 years ago | (#19395725)

Little companies? WizKids is owned by Topps.

Re:How quickly they forget (0)

Anonymous Coward | more than 7 years ago | (#19395831)

Actually, it's probably more like they've realized they can't stay in business unless they play hardball. It's not a matter of "fun," it's a matter of survival.

How the hell do you patent this? (1)

rsilvergun (571051) | more than 7 years ago | (#19395641)

I had punch out toy cars and planes when I was 6. How the hell do you patent playing a board game with them? Jesus.

Great Idea for a Collectible Card Game (1)

edawstwin (242027) | more than 7 years ago | (#19396769)

WotC could make a CCG similar to Magic: the Gathering out of this: Your cards would be patents and lawyers and politicians and your "life" would be money. The battlefield would be the courts and fights would be lawsuits. Whoever makes the other guy go "broke" first wins. I'm filing a patent right now!

Calm down! Don't hastily dismiss this patent! (5, Informative)

gtmaneki (992991) | more than 7 years ago | (#19397325)

I'm getting tired of seeing most of the posters on /. assume all patents are like software patents, and therefore an evil that must be eradicated. Because /. is tech-oriented, most of the patent disputes on here are over software patents, but non-software patents can be a totally different story.

Now slow down and look at the patent, which was linked to in the summary. Yes, there's some legalese, but that's because patents are both technical and legal documents. There are 15 claims, which are the heart of the matter. The claims cover a game using punched-out pieces that are assembled to make models for the game, weapon accessories, and a "random-value generator." The model that is assembled can be a vehicle or robot, and the models use the accessories to inflict damage to each other. Finally, the pieces are distributed in categories of common, uncommon, and rare. This is one of the better-written patents I've read, and it narrowly covers a definite physical invention.

Earlier posters have mentioned a couple more interesting facts: First, this patent was filed in 2003, while the pirate game was released in 2004. Second, Mike Selinker, the creator of WizKids' pirates game, worked for WotC when they were designing the game mentioned in WotC's US Patent 7,201,374, and later left to work for WizKids.

I'm not saying that Hasbro/WotC's patent can't be invalid. WizKids may be right. But this patent shouldn't be automatically dismissed.

Re:Calm down! Don't hastily dismiss this patent! (1)

Jare (790431) | more than 7 years ago | (#19398073)

"it narrowly covers a definite physical invention"

The physical part has prior art dating decades; the "usage" part is obvious. Yet another stupid "X + Y" patent. And yet another example why patents today PREVENT rather than HELP innovation: WotC decided not to use the concept in a commercial product, and is now trying to stop someone else from doing it. Result if they get their way? You don't have a "constructible punch out blahblah game."

Re:Calm down! Don't hastily dismiss this patent! (1)

gtmaneki (992991) | more than 7 years ago | (#19398353)

Please name for me some games that fit the claims in the patent. This game should fit the following:

* Competitive play -- your punch-out toy versus my punch-out toy
* Punch-out toy is vehicle or robot
* Punch-out toy can be customized with accessories that help it in its battles
* There is/are some random element(s) -- dice, cards, flip a coin, pop-o-matic bubble, etc.
* There are definite, codified rules -- not something where we build models on our own and decide to battle them
* The model kits and/or accessories are distributed in packs randomly. Some pieces are easy to find, while other pieces are rare.
* These toys existed before 2003.

Thanks!

Re:Calm down! Don't hastily dismiss this patent! (1)

Jare (790431) | more than 7 years ago | (#19398807)

I'm saying it is an "X+Y" patent. A trivial combination of existing well-known features or procedures. Whether a game already existed with that combination of features is irrelevant. Make the game, publish it, and sue the copycats for plagiarism. Patents should not be and were never meant to be the place for this kind of dispute.

Re:Calm down! Don't hastily dismiss this patent! (1)

gtmaneki (992991) | more than 7 years ago | (#19399123)

Isn't just about everything obvious in hindsight? Sure, having pitched battles with punch-out toys has been done for a while. Sure, CCGs have been done for a while. But I'm not sure anyone ever came up with a feasible way to combine them until recently.

The interesting parts here (and probably the ones deemed sufficiently innovative for a patent) come in with having some codified rules, the inclusion of random chance, and the rarity of different accessories.

I'll be interested to see how this plays out in court. You may be right, and I'm not sure yet how KSR v. Teleflex is impacting the patent system.

Re:Calm down! Don't hastily dismiss this patent! (0)

Anonymous Coward | more than 7 years ago | (#19399429)

Every Avalon Hill game. Stalingrad was our favourite.

http://en.wikipedia.org/wiki/Avalon_Hill [wikipedia.org]

Re:Calm down! Don't hastily dismiss this patent! (1)

gtmaneki (992991) | more than 7 years ago | (#19399761)

These look like fun. But they also look like boxed sets, and lack the collectible/expandable aspect.

Re:Calm down! Don't hastily dismiss this patent! (2, Insightful)

Herkum01 (592704) | more than 7 years ago | (#19405219)

your punch-out toy versus my punch-out toy

Warhammer 40K plastic models. You were give pieces that could be put together not just for different poses but different weapons.

Punch-out toy is vehicle or robot
Punch-out toy can be customized with accessories that help it in its battles

40K models also had different kits for putting together stuff like dreadnoughts and there were a ton of vehicles too.

There are definite, codified rules -- not something where we build models on our own and decide to battle them

Warhammer and Warhammer 40K

The model kits and/or accessories are distributed in packs randomly
These toys existed before 2003

I fail to see how randomly distributing accessories constitute a new concept that provides patent protection. This is more of a marketing gimmick that has nothing to do with the game itself. You want random, how about the toys that McDonald's give out in their kids meals. Does THAT deserve patent protection? Hell Cracker Jack has been that for decades.

This deserves as much patent protection as the eraser on he end of a pencil.

Re:Calm down! Don't hastily dismiss this patent! (2, Insightful)

gtmaneki (992991) | more than 7 years ago | (#19398927)

And while I'm at it, I should also take you up on the "patents prevent innovation" rant. The way I see it, this patent could be circumvented by doing some of the following:

* Don't use robots or vehicles
* Ditch the whole collectible aspect
* Ditch the random aspect

For example, I am reading patent literature and come upon this one. I think, "A game from punch-out models! That's a good idea!" To avoid WotC's patent, my game:

* Is non-collectible. There are no rare or common pieces. You buy a base set, and if you want any accessories, you buy them in bubble packs that let you see everything you're getting.
* Involves castles. You and your opponent build castles and try to knock the walls down.
* There's no random factor. This is purely engineering. The best defense is by building the sturdiest castle out of the base set and accessories. The offense involves firing projectiles (I'll think of safety measures later; I can only brainstorm so much on a lunch break) at your opponent's castle. The offensive strategy is to find your opponent's weak points and hammer them.

There! I have a new game, and I wouldn't have thought of it today without running across this patent. Now this is the kind of idea propagation patents were designed for. While the current system has flaws, innovation isn't as stifled as you seem to think.

Another example -- WotC has a patent on collectible card games. That didn't stop everyone and his brother from making CCGs. Was innovation really stifled?

Was innovation promoted? (1)

Geof (153857) | more than 7 years ago | (#19400447)

Another example -- WotC has a patent on collectible card games. That didn't stop everyone and his brother from making CCGs. Was innovation really stifled?

Let's turn that around. Was innovation really promoted? Or did burdensome patent regulation impose an overall cost on game developers while reducing consumer choice?

The way I see it, this patent could be circumvented by doing some of the following . . .

If the minor changes you suggest are sufficient to avoid infringing the patent, then we have a legal regime that forces inventors and developers to focus their efforts on altering details to avoid lawsuits rather than being free to improve existing products. It's very hard to measure how much innovation failed to happen because creators had to spend their limited time and money working out alternatives to patented methods rather than innovating elsewhere. Meanwhile, small players have difficulty competing in the market unless they can afford legal help, while even large companies like WotC spend money on lawyers which, according to your analysis, appears to be wasted.

Re:Was innovation promoted? (1)

gtmaneki (992991) | more than 7 years ago | (#19403511)

Remember that WotC originally was a small gaming company.

They developed the CCG, which isn't as simple as just running some card blanks through a printer. And the demand for this radically new kind of game -- based off WotC's idea -- was so great that there were tons of different CCGs. Magic, Pokemon, Battletech, Dr. Who, Monty Python, Babylon 5, Rifts, and Illuminati, to name only a few of scores.

Did the patent work? In theory, licensing the patent allowed WotC (at that time, a small company, remember) to recoup some of the expenses of putting Magic out there and make different games (I always liked "Guillotine"), not to mention the incessant onrush of Magic expansions.

Would WotC have put Magic out there without a patent? I don't know. If they didn't, that would have really reduced consumer choice until somewhere down the road someone thought of a similar idea...sometime. Baseball cards and playing cards had been out for a long time before CCGs came around.

Were some manufacturers unable to pay a licence fee and put their games out? Again, I don't know. We'd have to see what the licence involved. It could have cost millions, or it could have been pretty near free like for the D20 system. Still, there were so many types of CCGs available that I never heard anyone complaining of a lack of choice.

And thank you for thinking my idea was so great. We'll have to go drinking sometime and I'll give you plenty more. (But you pay for the drinks, mind.) What I was trying to say is that it isn't impossible to circumvent a patent. But you also have to realize that it isn't trivially easy, either. Kinda like how it isn't trivially easy to get a patent in the first place. That's how the system works. It is not perfect, and needs fixing, but what prompted my very first post on this topic was to try and educate the readers here that

* Software patents are not representative of the entire patent system.
* The patent cases that come up in /. are not representative of the entire patent system.
* While the patent system needs fixing in spots, it is not broken.

And I guess on that note, if you think the patent system is broken (in all or in part), be sure to do something in the public arena about it. I am -- part of my job is to comb the existing patent literature involving chemistry and look for bad patents.

Re:Was innovation promoted? (1)

Raenex (947668) | more than 7 years ago | (#19406803)

Would WotC have put Magic out there without a patent?
Yes. From Death to the Minotaur [salon.com] :

"Wizards first showed off Magic in the summer of 1993 at the Origins game convention in Dallas. [..] It was a disaster. [..] A year later, Wizards hired me. In the months in between, Magic had hit the gaming hobby like an outbreak of foot-and-mouth disease [..] Wizards also experienced explosive growth. I joined the company in May 1994, when there were about 50 employees -- already up massively from a year earlier, when only a handful of people worked at the company. By the summer of 1995, the employee rolls stood at 250 and climbing."

The patent (5,662,332) was filed on October 17, 1995. They were already a success, and just wanted to monopolize on that success.

Re:Was innovation promoted? (0)

Anonymous Coward | more than 7 years ago | (#19404047)

The answer to your question is determined by two factors. First, did WotC benefit from having exclusivity? Second, once the patent expires, will the claimed subject matter be used by others? WotC have a niche to market a product with all of the features they claimed. Maybe in twenty years, generic versions of the same product will be sold by others. The likelihood of their being generic versions in the future depends on whether WotC is successful in their niche. These chances are improved by WotC not having competition in that specific niche.

Re:Calm down! Don't hastily dismiss this patent! (1)

WNight (23683) | more than 7 years ago | (#19401237)

Physical invention? Snap-together models? What new physical invention is there? New snap edges? Better bracing design?

Oh, no. Just little cut-outs. The whole real patent is about a business model. Wow, some things are more common than others and they're distributed in booster sets.

Did these people totally miss baseball cards and the rest of human history where people have done every single thing mentioned therein?

Note, patents aren't supposed to cover things you just haven't thought of yet, but things that many people couldn't just come up with on the spur of the moment when asked. An umbrella is (was) patentable because it's a unique physical device to make a rain roof. The idea of taking a newspaper and holding it over your head to stay dry isn't.

What, even microscopic, technological advancement was there in this case?

Re:Calm down! Don't hastily dismiss this patent! (1)

gtmaneki (992991) | more than 7 years ago | (#19402049)

Good question. But patents don't just have to have a new design; it is also allowable to patent an existing design for a new application.

I see it a lot in chemistry -- A chemical formulation has been used extensively in field A (lots of prior art). I spend time and money to determine that the same formulation is extremely useful in field B, but no one has ever thought of using it there before. I can then apply for a patent using the existing formulation in field B. There's still technical advancement in field B, even if a known chemical formulation was used.

This WotC/WizKids issue seems similar, just substitute games for chemistries.

Re:Calm down! Don't hastily dismiss this patent! (1)

Tjp($)pjT (266360) | more than 7 years ago | (#19402751)

Until our European Overlords consume us, The United States is still a first to invent rather than first to file country. WizKids is now obligated to either invalidate WotC patent, or show they were first to invent. And under current patent law interpretation by the courts, first to invent may only preclude WotC from actions against them, not invalidate the patent itself as AFAIK WizKids did not similarly file a patent on their take of the invention.

Side note. TSR fell to WotC because TSR was sued over the "tap" playing card patent. And lost. Everything. So WotC is not new to this since Hasbro, it is part of their corporate culture, and defense of intellectual property really is OK.

Re:Calm down! Don't hastily dismiss this patent! (1)

gtmaneki (992991) | more than 7 years ago | (#19403659)

Thanks! Good point about first-to-file vs first-to-invent. This is going to be an interesting case.

Interesting aside about TSR. I thought they went under because they stagnated -- not much of a rules update, and all the supplements and books were just rehashes. Kinda like Magic and all the expansions. :) I wonder how all this fits in with the Palladium vs. WotC lawsuit mentioned earlier? (Does Palladium even publish any non-Rifts books anymore?)

Re:Calm down! Don't hastily dismiss this patent! (1)

Lehk228 (705449) | more than 7 years ago | (#19406119)

so the patent is not having to glue them together and paint them like warhammer?

get the corporate dick out of your mouth and think about how stupid everything you wrote really is.

Re:Calm down! Don't hastily dismiss this patent! (1)

gtmaneki (992991) | more than 7 years ago | (#19406339)

Wow -- I'll have to remember this debating tactic. "Sucking corporate dick" sure beats "QED" as punctuation for a logical argument.

To answer your question (which was a good one, despite the fact you asked it like a jackass): According to the patent, it looks like the difference between Warhammer and the WotC/WizKids games is that Warhammer isn't packaged randomly like CCGs. Go back and read the claims.

Not to mention that, unlike Warhammer, the WotC and WizKids games don't need a tape measure and a strong background in vector calculus to play. (FYI: That's a joke, son.)

Prior Art from the 60's and 70's (1)

grapeape (137008) | more than 7 years ago | (#19405439)

If the area of dispute is the chase card aspect wouldnt the thousands of non-sport card sets for the past 40 years be valid prior art. Many had puzzles on the back that you had to have all of the cards to complete, and several were normally short-printed. I remember a card set I had as a kid that had punch out pieces sort of like paper dolls where you had to build a model of someone...i remember being ticked off that I could never find the one piece I needed to finish it.
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