Navigating the Patent Regime in Metaverse
Metaverse is a shared virtual environment which utilizes virtual reality and augmented reality technology and devices-theoretically which blurs the difference between real and virtual world. The industries most likely to experience an immediate impact from the metaverse are entertainment, gaming, education, fashion and finance. Of late, numerous companies are evolving innovations for use in the metaverse and are forging ahead with patent filings to protect this intellectual property. Apart from entertainment, this space is also acquired for work purposes. Very recently, India-based fintech firm Signzy has secured a US patent for its innovative technology on customer onboarding in the metaverse. A simple patent search reveals that several metaverse filings have taken place months before. This article will discuss the anticipated challenges in assessing patent applications for metaverse.
[Image Sources : Freepic]
In February 2022, Disney was granted a patent to create a real-world theme park ride where users will experience a 3D virtual world, using simultaneous localization and mapping (SLAM). This technique will be used to map park visitors’ surroundings as they move through the real world, while creating 3D projection-based imagery. Holograms of Disney characters will be projected, creating a highly immersive but personalized experience(US11210843B1). This is notable that it will require both hardware and software technologies. From multiple wearers of VR headsets to algorithms for generating and moving virtual shapes and scenes based on hand gestures, head motion, or line of sight of the user; Systems for optimizing shared views of virtual objects to methods for generating 3D avatars of the users, there are quite some items which are likeable to be patented in the Metaverse. VR technology is rapidly evolving, courts and patent offices are still behind in defining the differences between one VR technology’s novelty from another. There exist many patents for virtual reality and augmented reality headsets which differ only in minute technical details. Due to multiplicity of improvements that can be performed on this hardware, determining novelty and inventiveness could become a herculean task. Nevertheless, elusive technological changes can lead to the invention being patentable same can be seen from the profusion of patents already granted around the world.
Another trend is that techs are shifting from merely entertainment-based VR patents towards more useful, inclusive, and practical applications such as surgical simulators, complex medical database visualization, and rehabilitation data. Many companies have been filing patents to protect the technology behind such hardware developments. This burdens the courts with the decision that if a particular patented product for reality could be extended to another company’s product for VR/AR.
While comparing hardware technology to software technology, seeking patent protection for hardware technologies for the metaverse is rather simple. Contrariwise, obtaining software patents for metaverse technologies is likely to be comparatively more difficult due to heightened eligibility criteria. Traditionally, for software-based inventions, the prime consideration for examiners is if the process is merely a manual or mental process confined to a computing environment. This principle is also extended to the metaverse environment. US Supreme Court affirmed the same in Alice Corp v. CLS Bank. Another consideration in evaluating a metaverse innovation for novelty/non-obviousness is determining whether the process executing in the metaverse environment is equivalent to the same or similar process outside the metaverse environment. According to DLA Piper’s Joseph Wolfe. “If, for example, the only difference between the proposed invention and the prior art is that the proposed invention is confined to the metaverse environment, it may be difficult for applicants to clear the prior art.”
In US, with the release of the U.S. Patent and Trademark Office’s 2019 Patent Eligibility Guidance has lowered the eligibility criteria. Examiners must broadly construe what constitutes an “abstract idea” in favor of subject matter groupings that include certain methods of organizing human activity, mental processes, and mathematical concepts. As demonstrated in European Patent Office (EPO) decision G1/19, patenting inventions for simulation can be difficult via the EPO. In sum, protecting software inventions might not always be easy, but there is surely room for innovation, for most of the metaverse will be built on simulation, either of the real world or virtual locations and situations. While care should be taken to position the software inventions in a patent-friendly manner, there is plenty of scope for obtaining protection for all types of metaverse inventions.
Design patent protection is available in the United States and Canada to protect the ornamental design of an object. Europe and other jurisdictions operate on a registration system, rather than an examination system. With corporations trying to engage their customers in virtual sphere and using Metaverse as a strong marketing tool, they are also expected to try to utilize design patent protection for any new, original and ornamental designs that they are using in the metaverse. “A virtual business may have – as a primary core asset – a virtual product design, aspects of which that may need protection as trade dress under trademark law – or through a design patent,” Holland & Knight’s Thomas Brooke stated in a recent note. In December 2020, the USPTO states in its Manual of Patent Examining Procedure, “Computer-generated icons, such as full screen displays and individual icons, are 2-dimensional images, alone are surface ornamentation,” and that comply with the “article of manufacture” requirement of 35 U.S.C. 171, which suggests that that designs for “projections, holograms, and virtual and augmented reality” are protectable. With Fashion Weeks being conducted in Metaverse, the first of its kind was conducted on the 24th of March, 2022, the subject of the first publication of fashion and NFT designs in hybrid streamed and in person fashion week raises some important unanswered questions about how designers can protect their works. What would now be seen as first publication is a question that courts will have to decipher.
Future of Patents
The metaverse is sure to have its own set of unique challenges for obtaining patent protection, for both examiner and practitioners as the laws have traditionally not been designed to be applied in an environment where reality and computer-generated simulation meet. However, one can expect these to coincide with the same principles for patenting blockchain innovations and artificial intelligence innovations can be applied to metaverse innovations to provide some guidelines to these applications. Grasping these newer opportunities to familiarize to the metaverse environment will be both appreciated and necessary to sustain the ever-evolving nature of IP-Laws and help it adapt to novel technological advancements.