To be fair, given how recently the games mechanics became public domain, Hex was easily in development before it became legal to copy. And as such, must have broken the law.
You can make anything you want regardless of copyright or patent. The law only gets involved when you start selling. Hex started selling after Magics patent ran out.
Hex, however, appears to have 5 colors, costs that are paid in mana of any color + specific colored mana, the exact same abilities but worded slightly difference (Flying -> Flight, Trample -> Crush), and a LOT of cards that are EXACTLY the same as Magic.
Are those elements copyrightable, though? I mean, WotC can own the color pie symbols, but they can't possibly own the idea of having five kinds of resources. That kinda thing. They only have copyright claims to the expressions of Magic. The mechanics are not copyrightable.
Basically, from all I know about IP, it should be legal to "clone" Magic as a game, as long as I don't use the copyrighted expressions. I can make my own set of cards, working exactly the same way as MtG cards, as long as I don't use the art, mana and tap symbols, word templating, etc.
So it doesn't violate copyright if you create the game that requires the same exact steps to win? Without deviation?
AFAIK, this is not illegal. Game mechanics are not copyrightable. You have a copyright on your rules document, but anyone can just write a functionally identical one no problem. Copyright only protects expressions, not ideas.
Example: WotC has a copyright on Ancestral Recall, which is an instant that costs a blue mana to cast and then lets you draw three cards. WotC does not have a copyright on the concept of having a card that costs one of a specific resource, and allows you to draw three cards.
Magic, the game, has reached the end of its protection period and rather than graciously accepting this fact, Wizards is attempting to harass the first comer to take advantage of this new public domain IP with a costly lawsuit.
Eh, I hope that Wizards wins honestly. Regardless of the legality of the situation, it's pretty clearly intent on being extremely close to Magic, and was designed with that purpose in mind. All it feels like is going on is trying to hide behind the law because they can, as opposed to making a good game with their own ideas.
Eh, I hope that Wizards wins honestly. Regardless of the legality of the situation, it's pretty clearly intent on being extremely close to Magic, and was designed with that purpose in mind. All it feels like is going on is trying to hide behind the law because they can, as opposed to making a good game with their own ideas.
You've got it all backwards!
The ideas behind Magic belong to us all now, nobody's hiding behind the law, instead the law has given us this IP in the interests of the public good.
Personally, I think Hex is just different enough to give it that tainted feel that you're describing where it feels like they're (needlessly) trying to copy Magic in an underhanded way. I wish someone would just start printing functional clones with their own flavor, artwork etc. But the complexities of the law, the uncertainty that creates, and the huge personal risk for those involved seems like this will be unlikely in the near future. Of course, if Hex fights it and wins then that will open the field, but something tells me that if it gets close to that Hasbro will buy them out or find some other way to stop them.
No, I don't have it backwards at all. I don't honestly care what the law has to say on the subject, my personal feelings aren't going to be changed by it. Which goes back to "they're hiding behind the law to do something I don't approve of because they can". It isn't them using some vague concepts of Magic, it's them using everything but it's aesthetics when it comes to the worlds they do to make the game. For all intents and purposes, you could print "Hex" as a new set in Magic and with the terminology changed no one would bat an eye.
No, I don't have it backwards at all. I don't honestly care what the law has to say on the subject, my personal feelings aren't going to be changed by it. Which goes back to "they're hiding behind the law to do something I don't approve of because they can". It isn't them using some vague concepts of Magic, it's them using everything but it's aesthetics when it comes to the worlds they do to make the game. For all intents and purposes, you could print "Hex" as a new set in Magic and with the terminology changed no one would bat an eye.
At the very least, it might encourage WOTC to step up their game from their horrible client. Regardless of your opinion, its perfectly fine for someone to copy MTG's mechanics, even if its verbatim or not.
I still don't see how this is a bad thing for consumers.
No, I don't have it backwards at all. I don't honestly care what the law has to say on the subject, my personal feelings aren't going to be changed by it. Which goes back to "they're hiding behind the law to do something I don't approve of because they can". It isn't them using some vague concepts of Magic, it's them using everything but it's aesthetics when it comes to the worlds they do to make the game. For all intents and purposes, you could print "Hex" as a new set in Magic and with the terminology changed no one would bat an eye.
At the very least, it might encourage WOTC to step up their game from their horrible client. Regardless of your opinion, its perfectly fine for someone to copy MTG's mechanics, even if its verbatim or not.
I still don't see how this is a bad thing for consumers.
There's still a difference between copying mechanics, and copying the entire freaking game.
Private Mod Note
():
Rollback Post to RevisionRollBack
My Commander decks:
Chandra, Torch of Defiance - Oops! All Chandras.
Prime Speaker Zegana - Draw for Power.
Pir & Toothy - Counterpalooza.
Arcades, the Strategist - Another Brick in the Wall.
Zacama, Primal Calamity - Calamity of Double Mana.
Edgar Markov - Vampires Don't Die.
Child of Alara - Dreamcrusher.
There's still a difference between copying mechanics, and copying the entire freaking game.
Obviously Hex did not copy MtG in its entirety, because otherwise this would be a simple counterfeiting case. Hex copied some aspects of MtG substantially, and other aspects not at all. The question is: are those aspects copied by Hex legally protected?
Think back to Scrabulous, which was a Scrabble clone. All that game had to do was change its name and the design of the board. Mechanically the game is identical to Scrabble, but there's nothing wrong with that from a legal standpoint.
How is not using Magic's rules? From what I've seen it looks virtually identical in that regard. Is putting new names on them various parts enough of a difference, even though they do the same thing and combine to create the same experience?
You can copyright the rules text (basically the manual), but that doesn't mean that the mechanics behind those rules are protected by copyright. A movie can copyright a script, but not the idea of, say, a movie about a boy meeting a girl and falling in love. If the script (or manual) isn't pretty much identical, then its not copyright infringement, even if the ideas are the same.
You can patent game mechanics, like tapping. But MTG's patent for mechanics has expired.
WOTC's claim of copyright infringement is weak at best. WOTC's claims of patent infringements may have some merit, but any damages would have been valid up to June 22, 2014 when the patent expired. WOTC's claim for trade dress is arguably the only real point of contention. Does Hex look close enough to MTG that people would have confused the game as if it were MTG? The important thing here is that Hex has to look like MTG, not necessarily play like MTG. Trade dress laws cover non-functional aspects while patents cover functional aspects.
I'm pretty sure that most gamers would not say that Hex looks so similar to MTG as to be considered an MTG product. But considering this case will be done by a jury, would, say, a grandma tell the difference? Not sure.
Thanks for the info, I guess I understand even thought it feels so unintuitive that someone could essentially re-skin a creative work and sell it as their own. But like you said, hopefully this just pushes Magic to create a good user experience online, something that should have been in place 5+ years ago.
Isn't it so that you have to defend your copyright to be able to keep it, that if Wotc didn't do anything about this in the long eun they could lose some of their copyrights?
Or am I completly upside down?
I believe that is true for *trademarks*, not copyright.
There seems to be a lot of misinformation about WOTC's patent. The patent ran out in June this year. Hex released their game to backers before that date, including the ability to purchase booster packs and other items through their client.
Looking at the infringing cards, it pretty amazing how lazy these guys were in ripping off MTG. Direct ports of cards like Rampant Growth, Corrupt, Form of Dragon, Stone Rain. These are cards that have been unique to Magic because they only function within Magics rules. Not only did Hex copy MTGs rules, they went and copied over a hundred individual cards almost word-for-word, cost-for-cost, and color-for-color. They didn't even try to come up with their own color pie, all the colors in Hex do the same things as their MTG counterparts. The difference in how costs are paid is is te only difference and is negligible.
I see no creativity here, this game is indistinguishable from MTG if you remove the frames and thesaurus game terms (troop = creature, champion = player, ruby = mountain, speed = haste, etc) and the individual card designs are indistuinguishable from MTG core set staples.
Also, I don't think public domain applies to ongoing works. And Magic isn't a drug that people need to live (insert jokes), it's an entertainment product, so there's no justification or need for a cheaper generic knock off product.
That's right, the guys who developed hex made thousands of dollars from a kick starter campaign before WOTCs patent expired, they absolutely violeted the law here by making money off of a rule system that WOTC owns.
Isn't it so that you have to defend your copyright to be able to keep it, that if Wotc didn't do anything about this in the long eun they could lose some of their copyrights?
Or am I completly upside down?
This is correct. Whether they care about Hex or not (they probably do) they're obligated to sue them, otherwise they can't sue other cases of infringement in the future that they might care about.
Thanks for the info, I guess I understand even thought it feels so unintuitive that someone could essentially re-skin a creative work and sell it as their own.
It's only unintuitive to you because you got used to it and were born into the system. Look at what Jefferson, someone who lived before the copyright cartels came into power, had to say on the subject of owning ideas in nature:
Quote from Thomas Jefferson » »
That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
Let me put it this way: Mc Donalds owns the copyright on their logos and stuff, but they do not own the idea of having a fast-food restaurant. I can "reskin" Mc Donalds and start my own fast-food chain, selling the same kind of food and drinks as Mc Donalds, with exactly the same recipes. What I cannot do is call my restaurant Mc Donalds, or call my sandwiches Big Macs, or use the golden arches symbol. Do you think it would be intuitive if Mc Donalds could actually stop people from opening fast food restaurants that sell burgers?
This is correct. Whether they care about Hex or not (they probably do) they're obligated to sue them, otherwise they can't sue other cases of infringement in the future that they might care about.
No I am afraid you are mistaken here. That only happens with Trademarks, not patents and/or copyrights. In fact it is a common strategy in the patent world to wait until someone succeeds in the market or acquires VC capital before suing him for patent infringement, to maximize the settlement profits.
I don't see why Hex shouldn't be allowed to operate
It's like having Coke and Pepsi together. Why not let the consumer base take their pick?
This is like Coke trying to copyright cola flavored soda.
Rip-offs should be allowed. They get enough stigma for being ripoffs anyway. Any individual Homebrand cola company certainly makes less money than Coke or Pepsi.
And all of these mirror examples are clearly affectionate homages.
I'm sorry but Selesnya Evangel re-imagined as 'Concubunny' is hilarious!
And the Spectral Tiger + Black Lotus reference is just that. Obvious ripoff it may be, but it appreciates its inspiration. This shouldn't be illegal.
You don't call "dying to removal" if the removal is more expensive in resources than the creature. If you have to spend BG (Abrupt Decay), or W + basic land (PtE) to remove a 1G, that is not "dying to removal". Strictly speaking Goyf dies to removal, but actually your removal is dying to Goyf.
You can make anything you want regardless of copyright or patent. The law only gets involved when you start selling. Hex started selling after Magics patent ran out.
That's actually not true. With a Patent, the patent holder can prohibit you from making, using or selling the patented device or process.
It's like having Coke and Pepsi together. Why not let the consumer base take their pick?
This is like Coke trying to copyright cola flavored soda.
No, this is like Coke trying to keep control over its proprietary design, research, and development practices. People have gone to jail for trying to circumvent this.
Game mechanics aren't protected by copyright, but individual game design is. As a random example, the rules governing how a sudoku is solved is not copyrightable, but individual sudoku puzzles are.
Some of the Hex cards are so blatantly copied from Magic cards, that it's actually quite amazing. There's just no way they could claim coincidence, with so many details matching.
Take for instance "Droo's Colossal Walker" vs. : Both are artifacts, both are 8/8, both don't untap normally, and most damningly, with both you can pay exactly 8 life to untap it. Even the pictures are thematically similar, and even the name has a variation of "colossus" in it.
There's no way that the person who designed "Droo's Colossal Walker" didn't have in front of him when he did the design.
Your argument doesn't make much sense. I dont know what you mean by "individual game design" is copyrighted. As far as i know, you can't copyright or event patent a game design. The makers of Unreal most definitely played and took inspiration from Doom and Quake.
The only aspects protected by copyright are the card's art and text. So to start right off: They both have completely unique original art and frames. The text? The only words those cards share are "artifact", "can't", "pay", "your", and the number 8. In short, the majority of the text is not the same as each others.
Where, more specifically, is the copyright infringement? Again, text and art. The mechanics or any of its functional aspects are not a point of contention.
It's like having Coke and Pepsi together. Why not let the consumer base take their pick?
This is like Coke trying to copyright cola flavored soda.
No, this is like Coke trying to keep control over its proprietary design, research, and development practices. People have gone to jail for trying to circumvent this.
Stealing trade secrets is hardly the same as accusing another company for trade dress or copyright infringement. It would be much closer to saying Coke is trying to sue a company using a red can, white letters, and the word "Cola" on it. Nevermind that Coke would never win such a lawsuit.
Game mechanics aren't protected by copyright, but individual game design is. As a random example, the rules governing how a sudoku is solved is not copyrightable, but individual sudoku puzzles are.
Some of the Hex cards are so blatantly copied from Magic cards, that it's actually quite amazing. There's just no way they could claim coincidence, with so many details matching.
Take for instance "Droo's Colossal Walker" vs. : Both are artifacts, both are 8/8, both don't untap normally, and most damningly, with both you can pay exactly 8 life to untap it. Even the pictures are thematically similar, and even the name has a variation of "colossus" in it.
There's no way that the person who designed "Droo's Colossal Walker" didn't have in front of him when he did the design.
Your argument doesn't make much sense. I dont know what you mean by "individual game design" is copyrighted. As far as i know, you can't copyright or event patent a game design.
You are incorrect. Game design is in fact patentable, and in this specific case has been patented. You can even read the patent here.
I've interacted with intellectual property lawyers relatively often as a necessity of my employment. I am not an IP lawyer myself. However, the clear conclusion I came to is that layman's understanding of copyright, trademark and patent law is largely wrong, and that the common-sense outcomes of many cases are not the actual legal outcomes of those cases. I've also seen it go both ways: things that appear to be clear violations of copyright/patent have been ruled to not be violations, and things that appear completely fine have been ruled as violations. There's also the problem that IP law is an evolving entity, and a precedent set a few decades ago may or may not be relevant now, depending on which laws have remained constant and which ones have changed.
You can make anything you want regardless of copyright or patent. The law only gets involved when you start selling. Hex started selling after Magics patent ran out.
That's actually not true. With a Patent, the patent holder can prohibit you from making, using or selling the patented device or process.
Until you can show damages, which comes from them selling it you don't really have a case. Besides that companies routinely reproduce a patented item for internal use with the goal of releasing a copy after the patent expires. Hex being a beta, and alpha during the time in question can make that same argument.
You are incorrect. Game design is in fact patentable, and in this specific case has been patented. You can even read the patent here.
I've interacted with intellectual property lawyers relatively often as a necessity of my employment. I am not an IP lawyer myself. However, the clear conclusion I came to is that layman's understanding of copyright, trademark and patent law is largely wrong, and that the common-sense outcomes of many cases are not the actual legal outcomes of those cases. I've also seen it go both ways: things that appear to be clear violations of copyright/patent have been ruled to not be violations, and things that appear completely fine have been ruled as violations. There's also the problem that IP law is an evolving entity, and a precedent set a few decades ago may or may not be relevant now, depending on which laws have remained constant and which ones have changed.
By Wizards own admission digital games are different. Aside from the issue of the patent expiring (which really only covered a few gameplay elements) Hex is all digital while the Magic patent applied to a paper game. They own no separate patent on digital items and have made no attempt to go after other digital card games. In software it's quite common for two products that provide the same end result to the user to not violate each others patents because the code making up the individual games is different. Cryptozoic (hopefully) didn't copy the actual code for MTGO, they instead used the game as a model to create their own code and their own way of doing things.
In software it's quite common for two products that provide the same end result to the user to not violate each others patents because the code making up the individual games is different.
This and other similar arguments share a common error: the assumption that most things don't violate any IP law. Patents, copyright, etc. are basically a minefield. It is entirely possible - even probable - that a huge amount of software on the market right now, including many games, are in fact violating copyrights, patents, etc. The reasons you don't see lawsuits flying left and right are several:
1) When the lawsuits are flying, you often don't see them. Many companies are involved in ongoing litigation but don't advertise that fact, and may very well continue to sell the software under dispute while the legal process is underway.
2) Companies rarely have a reason to disclose the patents they licensed in the creation of software. The coexistence of products X and Y doesn't mean that X and Y have no patent conflict, it may simply mean that the companies already resolved it by licensing - or may even co-own the patents.
3) Sufficiently large companies collect "defensive suites" of patents, and enter a standoff situation where they mutually agree (explicitly or implicitly) not to sue each other.
4) Finally, companies only need to sue when they choose to. There is no general "use it or lose it" in patent litigation.
i really hope that WOTC wins, its not an awful gaming company (upperdeck, gameworshop and EA are far worst), and hex is really a clone of MTG, WOW was close, but Hex is a clone, people in cryptozoic are a shame to the industry.
i really hope that WOTC wins, its not an awful gaming company (upperdeck, gameworshop and EA are far worst), and hex is really a clone of MTG, WOW was close, but Hex is a clone, people in cryptozoic are a shame to the industry.
I think I feel the complete opposite of how you feel. I hope WotC loses, I think they've dropped the ball hard and that MODO is a wreck, and if they continue to go unchallenged then they're just gonna continue being as apathetic as they want because people will buy magic anyway. And as a consumer, I have nothing to gain if Wizards wins but I have the option of playing Hex if they lose.
You can make anything you want regardless of copyright or patent. The law only gets involved when you start selling. Hex started selling after Magics patent ran out.
Are those elements copyrightable, though? I mean, WotC can own the color pie symbols, but they can't possibly own the idea of having five kinds of resources. That kinda thing. They only have copyright claims to the expressions of Magic. The mechanics are not copyrightable.
Basically, from all I know about IP, it should be legal to "clone" Magic as a game, as long as I don't use the copyrighted expressions. I can make my own set of cards, working exactly the same way as MtG cards, as long as I don't use the art, mana and tap symbols, word templating, etc.
But is that illegal?
AFAIK, this is not illegal. Game mechanics are not copyrightable. You have a copyright on your rules document, but anyone can just write a functionally identical one no problem. Copyright only protects expressions, not ideas.
Example: WotC has a copyright on Ancestral Recall, which is an instant that costs a blue mana to cast and then lets you draw three cards. WotC does not have a copyright on the concept of having a card that costs one of a specific resource, and allows you to draw three cards.
This is pretty much my take on this.
You've got it all backwards!
The ideas behind Magic belong to us all now, nobody's hiding behind the law, instead the law has given us this IP in the interests of the public good.
Personally, I think Hex is just different enough to give it that tainted feel that you're describing where it feels like they're (needlessly) trying to copy Magic in an underhanded way. I wish someone would just start printing functional clones with their own flavor, artwork etc. But the complexities of the law, the uncertainty that creates, and the huge personal risk for those involved seems like this will be unlikely in the near future. Of course, if Hex fights it and wins then that will open the field, but something tells me that if it gets close to that Hasbro will buy them out or find some other way to stop them.
What is it that they are hiding and who/what are they hiding from?
At the very least, it might encourage WOTC to step up their game from their horrible client. Regardless of your opinion, its perfectly fine for someone to copy MTG's mechanics, even if its verbatim or not.
I still don't see how this is a bad thing for consumers.
There's still a difference between copying mechanics, and copying the entire freaking game.
Chandra, Torch of Defiance - Oops! All Chandras.
Prime Speaker Zegana - Draw for Power.
Pir & Toothy - Counterpalooza.
Arcades, the Strategist - Another Brick in the Wall.
Zacama, Primal Calamity - Calamity of Double Mana.
Edgar Markov - Vampires Don't Die.
Child of Alara - Dreamcrusher.
Obviously Hex did not copy MtG in its entirety, because otherwise this would be a simple counterfeiting case. Hex copied some aspects of MtG substantially, and other aspects not at all. The question is: are those aspects copied by Hex legally protected?
Think back to Scrabulous, which was a Scrabble clone. All that game had to do was change its name and the design of the board. Mechanically the game is identical to Scrabble, but there's nothing wrong with that from a legal standpoint.
Thanks for the info, I guess I understand even thought it feels so unintuitive that someone could essentially re-skin a creative work and sell it as their own. But like you said, hopefully this just pushes Magic to create a good user experience online, something that should have been in place 5+ years ago.
I believe that is true for *trademarks*, not copyright.
I see no creativity here, this game is indistinguishable from MTG if you remove the frames and thesaurus game terms (troop = creature, champion = player, ruby = mountain, speed = haste, etc) and the individual card designs are indistuinguishable from MTG core set staples.
Also, I don't think public domain applies to ongoing works. And Magic isn't a drug that people need to live (insert jokes), it's an entertainment product, so there's no justification or need for a cheaper generic knock off product.
This is correct. Whether they care about Hex or not (they probably do) they're obligated to sue them, otherwise they can't sue other cases of infringement in the future that they might care about.
It's only unintuitive to you because you got used to it and were born into the system. Look at what Jefferson, someone who lived before the copyright cartels came into power, had to say on the subject of owning ideas in nature:
Let me put it this way: Mc Donalds owns the copyright on their logos and stuff, but they do not own the idea of having a fast-food restaurant. I can "reskin" Mc Donalds and start my own fast-food chain, selling the same kind of food and drinks as Mc Donalds, with exactly the same recipes. What I cannot do is call my restaurant Mc Donalds, or call my sandwiches Big Macs, or use the golden arches symbol. Do you think it would be intuitive if Mc Donalds could actually stop people from opening fast food restaurants that sell burgers?
No I am afraid you are mistaken here. That only happens with Trademarks, not patents and/or copyrights. In fact it is a common strategy in the patent world to wait until someone succeeds in the market or acquires VC capital before suing him for patent infringement, to maximize the settlement profits.
It's like having Coke and Pepsi together. Why not let the consumer base take their pick?
This is like Coke trying to copyright cola flavored soda.
Rip-offs should be allowed. They get enough stigma for being ripoffs anyway. Any individual Homebrand cola company certainly makes less money than Coke or Pepsi.
And all of these mirror examples are clearly affectionate homages.
I'm sorry but Selesnya Evangel re-imagined as 'Concubunny' is hilarious!
And the Spectral Tiger + Black Lotus reference is just that. Obvious ripoff it may be, but it appreciates its inspiration. This shouldn't be illegal.
"OH GOD MY BRAIN IS EXPLOADING AT HOW BAD THE ART IS ON MY OWN CARD"
-A friend's first impression of Ancestral Recall
10/10, I tapped.
That's actually not true. With a Patent, the patent holder can prohibit you from making, using or selling the patented device or process.
No, this is like Coke trying to keep control over its proprietary design, research, and development practices. People have gone to jail for trying to circumvent this.
I'm Mike, from The Mana Pool.
Check out my Tapped Out profile and comment on my decks!
Your argument doesn't make much sense. I dont know what you mean by "individual game design" is copyrighted. As far as i know, you can't copyright or event patent a game design. The makers of Unreal most definitely played and took inspiration from Doom and Quake.
The only aspects protected by copyright are the card's art and text. So to start right off: They both have completely unique original art and frames. The text? The only words those cards share are "artifact", "can't", "pay", "your", and the number 8. In short, the majority of the text is not the same as each others.
Where, more specifically, is the copyright infringement? Again, text and art. The mechanics or any of its functional aspects are not a point of contention.
Stealing trade secrets is hardly the same as accusing another company for trade dress or copyright infringement. It would be much closer to saying Coke is trying to sue a company using a red can, white letters, and the word "Cola" on it. Nevermind that Coke would never win such a lawsuit.
I've interacted with intellectual property lawyers relatively often as a necessity of my employment. I am not an IP lawyer myself. However, the clear conclusion I came to is that layman's understanding of copyright, trademark and patent law is largely wrong, and that the common-sense outcomes of many cases are not the actual legal outcomes of those cases. I've also seen it go both ways: things that appear to be clear violations of copyright/patent have been ruled to not be violations, and things that appear completely fine have been ruled as violations. There's also the problem that IP law is an evolving entity, and a precedent set a few decades ago may or may not be relevant now, depending on which laws have remained constant and which ones have changed.
Until you can show damages, which comes from them selling it you don't really have a case. Besides that companies routinely reproduce a patented item for internal use with the goal of releasing a copy after the patent expires. Hex being a beta, and alpha during the time in question can make that same argument.
By Wizards own admission digital games are different. Aside from the issue of the patent expiring (which really only covered a few gameplay elements) Hex is all digital while the Magic patent applied to a paper game. They own no separate patent on digital items and have made no attempt to go after other digital card games. In software it's quite common for two products that provide the same end result to the user to not violate each others patents because the code making up the individual games is different. Cryptozoic (hopefully) didn't copy the actual code for MTGO, they instead used the game as a model to create their own code and their own way of doing things.
1) When the lawsuits are flying, you often don't see them. Many companies are involved in ongoing litigation but don't advertise that fact, and may very well continue to sell the software under dispute while the legal process is underway.
2) Companies rarely have a reason to disclose the patents they licensed in the creation of software. The coexistence of products X and Y doesn't mean that X and Y have no patent conflict, it may simply mean that the companies already resolved it by licensing - or may even co-own the patents.
3) Sufficiently large companies collect "defensive suites" of patents, and enter a standoff situation where they mutually agree (explicitly or implicitly) not to sue each other.
4) Finally, companies only need to sue when they choose to. There is no general "use it or lose it" in patent litigation.
I think I feel the complete opposite of how you feel. I hope WotC loses, I think they've dropped the ball hard and that MODO is a wreck, and if they continue to go unchallenged then they're just gonna continue being as apathetic as they want because people will buy magic anyway. And as a consumer, I have nothing to gain if Wizards wins but I have the option of playing Hex if they lose.