You can't. The whole case rests on trade dress, a form of trademark. They clearly know what they are doing in court, with past episodes being on Nintendo's side

You can't. The whole case rests on trade dress, a form of trademark. They clearly know what they are doing in court, with past episodes being on Nintendo's side in the past. Xio also had a terrible defense, and imo their expert witness falling flat. The evidence presented was also skewed imho, it drives me nuts every time I think about it. I should note that it is possible to patent game mechanics, and there are various patents owned by them, and also other developers of Tetris games. None of these cover the core mechanics of Tetris however.