It’s not even remotely frivolous.
They’ve gone to the extreme of having artifact==colourless, and even included the intimidate mechanic. They use the same colour pie, and the same evergreen keywords.
They claim to have built Hex from the ground up, but anyone who looks at it can tell they built it from MtG up. If they were aiming to stifle competition with frivolous lawsuits there are hundreds of games they’d be suing. But no, they’re only suing the one that’s an obvious clone of magic.
Luckily copyright doesn’t protect such things.
"Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles."
Source: U.S. Copyright Office
I will grant that the patent claims specifically (which are very different from either the trade dress or copyright claims) perhaps are not the definition of frivolous. However, just because a patent is granted by the patent office, does not mean that the patent is valid. Many are not, and the supreme court has been busy ruling on many of the worst cases of patent overreach.
For example, in WotC patent on it’s game, they claim the mechanic of “tapping” cards. http://www.google.com/patents/US5662332
Obviously this same mechanic is used in so many other card games I can’t count.
The thing with patents like this is, once granted, you are free to sue anybody else who uses tapping in their game, forcing them to pay legal fees and divert resources in order to battle said patent. Even if, once in court, it may very well be thrown out.
A specific rule in patent law called the “obviousness test” should exclude patents on inventions that are, basically, obvious. Quoting the supreme court “The results of ordinary innovation are not the subject of exclusive rights under the patent laws” However, patent examiners who grant the patents aren’t lawyers and often, heavily overworked, end up making the wrong call on these sorts of things.
Now I don’t know about you, but to me, turning a card sideways to indicate something happened to that card during a game is pretty darn obvious, and I’d warrant someone in the 500+ year history of playing cards turned a card on its side at some point during play.
So should WotC be able to sue other card game companies that have tapping in their game? Legally of course, anyone can sue anyone. But that kind of abuse of the patent system is what I personally call frivolous.
And the reason Hasbro is suing Hex instead of “hundreds of other games” is that Hex has become one of the most successful online card games, but is still a small company with limited financial resources. That makes them a juicy target. Because if they can get a ruling in their favor against Hex who may not be able to afford as much of a defense, then they might have the ammo to go against someone bigger like Blizzard’s Hearthstone. At the very least, they’ll be significantly weakening a real competitor in the online space that they have been struggling in.
As a business owner in the software industry, I can tell you first hand that this kind of behavior is pretty standard. At the end of the day, the art and war of intellectual property litigation makes large sums of money for those who can afford the effort and expense, but in many cases serves only to stifle innovation.
To read more, about such things, check out: