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Question regarding Wizards of the Coast patent


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#1 Little Coding Fox   Members   -  Reputation: 192

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Posted 19 March 2012 - 10:18 AM

Hello everyone,
I'm currently unable to acquire the services of a lawyer, and I am worried that a game I'm developing, although not a card game, might infringe on the Wizards of the Coast patent (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5,662,332.PN.&OS=PN/5,662,332&RS=PN/5,662,332). The funny thing is, it's not even a card game.

Right now this the basis for the game: You (the player) design your own spells by combining all sorts of effects sequentially over several "lines". Then, players select up to 12 different spells and "equip" them in a "spell list". Finally, players compete with each other by performing on duels.

Each spell has a specific cost, with several "natures", such as life, peace, dread, etc. Basically the whole gameplay is, after the inital "make your own spells and equip them" part (which is done before the game even actually starts), you have a game board in the middle of the game composed of spheres of several colors, and you match those as a rectangular shape in order to gain that color as a specific mana nature. Afterwards, you may choose one of your 12 spells, and cast it at any time.

Back to the main subject, in this game you don't trade anything other than combinations of effects. There are no cards. There is no graveyard, no hand, no deck. You re-use your spells constantly. As you might have guessed, this is nothing like a card game. However, me not being a lawyer, and considering this game will hopefully become a commercial game, I really need to be sure that I'm not doing anything wrong.

As I mentioned, I have absolutely no way to acquire the services of a lawyer. There's just no way I can do that right now. The game is already about 20% done, and it will take a long time to complete, but I need to know whether I am indeed infringing on the patent since, should the game be released, I might have to pay several times more due to some sort of infringement than I ever earn with the game.

Can any of you give me a hand? I really need some help... But it needs to be from an actual lawyer or someone who is indeed quite familiar with patents and such, since otherwise I'll always doubt whether whatever information I get is actually right...

Thank you for your time, and sorry if I seem kind of desperate, but I am feeling rather insecure at the moment.

Sponsor:

#2 bschmidt1962   Crossbones+   -  Reputation: 1879

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Posted 20 March 2012 - 12:33 PM

>

As I mentioned, I have absolutely no way to acquire the services of a lawyer.


Do you intend to release a game yourself? (eg iphone, etc.)? if so, then you at least need to talk to one, if for no other reason than you should set up a separate legal entity (eg a company) to release the game.


I can't tell you whether or not your game infringes on WOTC's patent-- nor should you rely on an internet forum to make such a determination :).


You've got a few choices: a) Just go ahead and make the game and release it and see what happens. b) Do some serious investigation of the patent to see if you are infringing and if so, tweak your game so that it doesn't. c) Ask WOTC for a license.


I'm afraid the only way to have high confidence is to ask a patent lawyer to look over things. But you'll need specific detailed and exact descriptions of what your game does. It probably wont' be cheap, since you'll need to pay them to analyze the patent and analyze your game. And even then, you never know-- one can always get sued (and WOTC seems to sue a lot).


My $0.02 would be to go ahead and make your game and not worry unless you did something quite blatant like essentially porting a trading card game to iPhone, etc.. if you're REALLY concerned, then read over the patent and change your game enough that you're certain it doesn't infringe. Yes, patents can be a dense read, but if you look to the claims and take your time, you may find it's not so bad after all. The claims are always at the end of the patent, and define what is actually covered.
One word of caution, though.... There is a difference between willful infringement and inadvertent infringement. If you know you're in violation, but put it out anyway, that'd be willful. In a case of willful infringement, the courts can award triple damages and attorney fees. if it's inadvertent, they can only give standard damages. (it's for that reason that many large companies have a policy that their engineers should NOT research patents)

If you do decide to release your game, set up a company (most states have laws letting you easily set up an "LLC" or Limited Liability Company). That way, if you do get sued, they sue your company, not you personally. And if I recall, most of the suits by WOTC end up being settled--meaning they come to some sort of agreement on a patent license.

Brian Schmidt

Executive Director, GameSoundCon:

GameSoundCon 2014:October 7-8, Los Angeles, CA

 

Founder, EarGames

Founder, Brian Schmidt Studios, LLC

Music Composition & Sound Design

Audio Technology Consultant


#3 Stormynature   Crossbones+   -  Reputation: 3422

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Posted 20 March 2012 - 01:13 PM

A not unreasonable discussion is held here about this:

http://forums.mtgsal...ad.php?t=214864

The game is already about 20% done, and it will take a long time to complete,


Given the date of filing by WotC of their patent -- the patent will lapse on October 17, 2015. If the game as you have said will take you a long time this may become a relevant factor.

My advice as always is seek appropriate legal advice, but I would also give consideration to actually writing a letter to WotC themselves and asking what their licensing conditions are. Instead of necessarily considering their holding a patent stopping you from doing this game of yours, consider the reality of still being able to do it with a license. If for example they simply wanted 2% of your royalties would you consider that an undue burden on creating your product? Sometimes the easiest approach to a monster is to go up and discover that they turn out to be kind....or you die a terrible painful death screaming my name in hate for having talked you into the monster's lair Posted Image

With respect to not being able to obtain the services of a lawyer. You might give consideration to checking in with Universities that teach law as part of their curriculum. You might be able to obtain some advice via that channel.

#4 Stormynature   Crossbones+   -  Reputation: 3422

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Posted 21 March 2012 - 06:58 AM

If you do decide to release your game, set up a company (most states have laws letting you easily set up an "LLC" or Limited Liability Company). That way, if you do get sued, they sue your company, not you personally. And if I recall, most of the suits by WOTC end up being settled--meaning they come to some sort of agreement on a patent license.


Not exactly true. This is very risky advice. If it is established that an investor has set up a LLC (with an intention to minimise personal liability) in order to perpetrate a violation then the LLC does not protect against personal liability of the investor.

Edit: It occurs to me that I should also point out that personal liability can also apply in an existing LLC where an investor engages knowingly in a violation or contributes to corporate malfeasance in order to obfuscate a violation.

#5 mdwh   Members   -  Reputation: 901

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Posted 21 March 2012 - 09:03 AM

I agree that it's hard for any of us to give an answer (though even a lawyer can't give the answer - only courts can). Though:

Do you intend to release a game yourself? (eg iphone, etc.)? if so, then you at least need to talk to one, if for no other reason than you should set up a separate legal entity (eg a company) to release the game.

I was confused by this - surely you don't need to talk to a lawyer or set up any entity to release games, on iphone or anything else (e.g., Windows, Symbian, whatever).

Perhaps there are some liability advantages to doing so(?) - but consider that for free software (where infringement issues still apply), it's very common for people to release under their own names, as individuals. (It may be different for commercial games, but this is probably a matter of country-specific laws on things like sole proprietorships; I know that Nokia at least are happy to accept "individuals" as entites for paid content.)
http://erebusrpg.sourceforge.net/ - Erebus, Open Source RPG for Windows/Linux/Android
http://homepage.ntlworld.com/mark.harman/conquests.html - Conquests, Open Source Civ-like Game for Windows/Linux

#6 bschmidt1962   Crossbones+   -  Reputation: 1879

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Posted 21 March 2012 - 09:15 AM

Not exactly true. This is very risky advice.

Thank you for clarifying. To be very clear. I was NOT suggesting he willfully infringe and set up an LLC to" protect himself." As pointed out, if you set up a corporation in order to evade the law or otherwise try to 'game the system', you will lose your liability protection. "Piercing the corporate shield" it is sometimes called.

surely you don't need to talk to a lawyer or set up any entity to release games, on iphone or anything else

True you do not need to. However, it's generally a pretty good idea to do so, mostly for liability protection, particularly if you have some personal assets (house, savings, etc.). It's easy and pretty cheap.
My point was that once you decide to release a game, you have created a business whether its a free game or not. And there are some downsides to having the business and yourself be the same legal entity.

Brian Schmidt

Executive Director, GameSoundCon:

GameSoundCon 2014:October 7-8, Los Angeles, CA

 

Founder, EarGames

Founder, Brian Schmidt Studios, LLC

Music Composition & Sound Design

Audio Technology Consultant


#7 Little Coding Fox   Members   -  Reputation: 192

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Posted 22 March 2012 - 08:39 AM

Thank you guys for your help. I've sent a mail to Wizards asking for their licensing possibilities so I'll at least have a starting point should I become unable to work around their claims. I'll also take a better read to their patent soon.

#8 Writhe   Members   -  Reputation: 143

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Posted 22 March 2012 - 01:15 PM

If you aren't trying to use their logos, symbols, storyline content, or character names then you should really not worry about it.

WOTC does not own the fantasy genra. WOTC does not own card games. WOTC does not own the concept of magical spells or armor.

98% of the content of their games comes from the work of previous authors, artists, folk lore, fairy tales, religious texts, etc. You have just as much right to use it as they do.

Contacting them about licensing just draws their attention and gives them grounds for possible future legal action. Researching patents makes you much more liabable, versus just doing the project and not knowing that you infringed on a patent. I'm not a lawyer, and this may be awful advice, but this is what I've gathered from my years of research and reading on the topic.

#9 Stormynature   Crossbones+   -  Reputation: 3422

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Posted 23 March 2012 - 08:32 AM

If you aren't trying to use their logos, symbols, storyline content, or character names then you should really not worry about it.

WOTC does not own the fantasy genra. WOTC does not own card games. WOTC does not own the concept of magical spells or armor.

98% of the content of their games comes from the work of previous authors, artists, folk lore, fairy tales, religious texts, etc. You have just as much right to use it as they do.

Contacting them about licensing just draws their attention and gives them grounds for possible future legal action. Researching patents makes you much more liabable, versus just doing the project and not knowing that you infringed on a patent. I'm not a lawyer, and this may be awful advice, but this is what I've gathered from my years of research and reading on the topic.


-1

If you aren't trying to use their logos, symbols, storyline content, or character names then you should really not worry about it.
  • Logos and symbols are covered by Trademark laws - not applicable to Patent law.
  • Storyline content is covered by Copyright laws - not applicable to Patent law.
  • Character names or names are covered by Trademark laws but are not generally given trademark status due to generic or common use issues usurping trademark laws - not applicable to Patent law.
WOTC does not own the fantasy genre: TRUE but irrelevant.
WOTC does not own card games: FALSE (Magic: The Gathering being one example) however I will ignore your wording and assume you meant "own" in a larger context in line with the idea of your previous point 'WOTC does not own the fantasy genre" in which case: TRUE but irrelevant
WOTC does not own the concept of magical spells or armor: TRUE but irrelevant:


98% of the content of their games comes from the work of previous authors, artists, folk lore, fairy tales, religious texts, etc.

I have no idea where you obtained 98% as a statistic from and am strongly inclined to disbelieve the validity of said statistic. I do agree however that a large portion, indeed most likely the majority, of their content is sourced or given inspiration from external information sources.

You have just as much right to use it as they do.

TRUE (with exceptions). The "with exceptions" is incredibly important point to note, for example any work protected by current copyright used as a source is effectively granted a claim against WotC. These claims are normally resolved through licenses and other means such as explicit permission by the copyright owner.

Contacting them about licensing just draws their attention and gives them grounds for possible future legal action.

Contacting a body for information about licensing will draw attention (hopefully positive attention), but that attention is necessary in order to reply to query. In NO WAY whatsoever does seeking information (in this context) provide grounds for possible future legal action.

Researching patents makes you much more liabable, versus just doing the project and not knowing that you infringed on a patent.

TRUE but what you have not realised is this very simple point. The OP has indicated their knowledge of the patent's existence as well providing a link to the actual patent. Any attempt at ignorance of the patent has been well and truly thrown out of the window. Therefore if the OP is in breach of the patent with their design (and I am NOT saying they are - I have no idea as I haven't looked at it not having any strengths in patent law to render sound advice) and continue ahead with publishing the game then any hope they have of claiming ignorance and a lesser penalty is already out of the picture.

I'm not a lawyer, and this may be awful advice, but this is what I've gathered from my years of research and reading on the topic.

It is truly my sincere hope that you do not take my post as a flame on you. It is not intended as such but OMG don't write this again please. What you gave was fundamentally NOT bad advice...it was ignorant advice. What you failed to do was address the primary issue raised by the OP.

As you might have guessed, this is nothing like a card game. However, me not being a lawyer, and considering this game will hopefully become a commercial game, I really need to be sure that I'm not doing anything wrong.

As I mentioned, I have absolutely no way to acquire the services of a lawyer. There's just no way I can do that right now. The game is already about 20% done, and it will take a long time to complete, but I need to know whether I am indeed infringing on the patent since, should the game be released, I might have to pay several times more due to some sort of infringement than I ever earn with the game.

Can any of you give me a hand? I really need some help... But it needs to be from an actual lawyer or someone who is indeed quite familiar with patents and such, since otherwise I'll always doubt whether whatever information I get is actually right...

Thank you for your time, and sorry if I seem kind of desperate, but I am feeling rather insecure at the moment.


It is extraordinarily dangerous to give specific legal advice on a forum as asked for by the OP for several reasons: The laws between each country and even each state tend to differ (though certain generic rules do tend to apply), a liability can be occurred by the poster for providing legal advice per say as to determining whether an infringement exists or not. At best from a lawyer you will get a qualified "in my considered opinion etc". Which is why in the case of this particular thread you will note both myself and bschmidt1962 are very careful to offer advice that provides options and information to the OP.

though even a lawyer can't give the answer - only courts can


emphatically TRUE.



Edit: In NO WAY whatsoever does seeking information (in this context) provide grounds for possible future legal action.

To explain what I meant by "in this context" - In a different context a person seeking information to aid them in order to commit a criminal act such as a bank floor plan would in this case be providing grounds for possible future action.

#10 samoth   Crossbones+   -  Reputation: 5038

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Posted 23 March 2012 - 10:34 AM

Researching patents makes you much more liabable, versus just doing the project and not knowing that you infringed on a patent.

In the USA, yes. Which, as Stormynature pointed out, is unfavourable for you (since you provably researched and are aware of said patent).

It is extraordinarily dangerous to give specific legal advice on a forum as asked for by the OP because [many reasons]

Also note that this is against the law in some countries (e.g. Germany). There are certain exceptions for non-commercial legal advice (some obscure, intangible formulation like "private relations of familiar, neighbourly, or friendly nature"), but in general, you have to expect a fee up to 5000 euros if you are not an accredited lawyer.

I am nevertheless tempted to kind of agree with most that Writhe said, in the context of free speech (not as a legal advice), and on a more emotical base. Reading the patent, it seems so outrageous and silly that one can hardly believe it (though of course the vast majority of US patents is exactly like this, which does not render them invalid). With the exception of the random element of spells that are made available, which is probably a good loophole, the loose wording of the patent basically covers "game with several people and user decisions, somewhat flexible" which includes about 3/4 of all existing fantasy computer games including some that existed prior to the patent and 100% of those japanese card collector games (digimon, pokemon, what are they called?).

You could even see Rogue (Moria, Nethack, Angband) as infringing this patent, if you are a bit "liberal" at interpreting the wording.

That, and the fact that the game isn't finished, and 2015 isn't so far away... so... I would not worry too much after all.

#11 bschmidt1962   Crossbones+   -  Reputation: 1879

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Posted 23 March 2012 - 11:59 AM

Reading the patent, it seems so outrageous and silly that one can hardly believe it


On that topic, it might be worth pointing out something else..

If someone is sued over a patent, there are generally two broad categories of defenses:
1) I'm not infringing
2) Your patent isn't valid/should have never been granted.

For 1), the burden is on the person doing the suing. It is up to them to prove to the court that your product is infringing. You don't have to do anything-- the burden is on them. Kind of like defending yourself against a crime--you don't have to prove yourself innocent; they have prove you guilty.

For 2), it's the other way around. Since the patent was granted, it is presumed to be valid. It therefore is up to you to show why it shouldn't have been granted.

2) is generally harder than 1), since you are the one with the burden of proof.

Brian Schmidt

Executive Director, GameSoundCon:

GameSoundCon 2014:October 7-8, Los Angeles, CA

 

Founder, EarGames

Founder, Brian Schmidt Studios, LLC

Music Composition & Sound Design

Audio Technology Consultant





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