Patently Strategic Podcast: Into the Patentverse, Volume 2

Virtual Reality (VR) and Augmented Reality (AR) intellectual property (IP) have been around for some time now, but how do they relate to the Metaverse? And how will VR and AR patent rights change as the Metaverse continues to evolve? The Patently Strategic Podcast will be exploring these topics in our next installment of Into the Patentverse.

Episode Overview

Earlier this year, we began our foray into this world with a deep dive into the building blocks that could very well form the structural and economic underpinnings of the Metaverse by exploring the tech concepts and IP implications surrounding Web 3.0, blockchain, cryptocurrency, and NFTs. Today we build on this, by expanding our conversation into the most likely interfaces for the Metaverse, as well as how patentability and infringement could play out as we meld innovations between the physical and digitals realms.

As a follow up to the first Into the Patentverse episode, Kristen Hansen, Patent Strategist and software patent guru, leads a discussion along with our all-star patent panel, to uncover:

• The Metaverse as a concept
• VR vs. AR vs. Metaverse differentiation
• Infringement in the Metaverse

Along the way, the group also shares some great tips for drafting claims around the virtual world to get around physical world prior art, as well as some pointers for avoiding divided infringement for processes that are performed in a distributed manner – as will almost always be the case with Metaverse-based innovations.

The Metaverse as a Concept

When you hear the term Metaverse, what do you think of? The historical reference to Neal Stephenson’s epic novel Snow Crash? Maybe the term makes you think of something from Matthew Ball’s essays about the Metaverse being interoperable, scalable, self-economizing, and multi-user interactive? Or do you think of some esoteric definition that describes virtual space and gaming?

At a minimum, the Metaverse offers a virtual place or time in which to execute software or utilize virtual hardware and virtual objects. In IP practice, the Metaverse is often boiled down to a list of features or guidelines that may represent a virtual backdrop for an invention. This virtual backdrop may include aspects of what virtual reality (VR) and augmented reality (AR) are today.

In the near future, users may look to obtain (or provide) services and experiences in a virtual manner within the Metaverse. What will the IP landscape for the Metaverse look like for inventors of those Metaverse-based services or experiences? If an inventor invents a new virtual service accessible in the Metaverse, the virtual backdrop may be a VR interface that a user can access to obtain and/or interact with the new service. The VR interface may have aspects that make the invention less obvious than inventions crafted to be accessed in real life. How do we determine if a Metaverse-based invention is new? Is it new based on the invention features? Or is it new because the invention is dropped into a new environment?

Virtual Reality vs. Augmented Reality

Differentiating virtual reality from augmented reality typically boils down to the hardware being utilized. In virtual reality, 2D or 3D virtual content may be accessed using a head mounted display (HMD) device where the real world is blocked from view. The virtual world is shown on the HMD display, which can be placed in close proximity to the eyes of a user. A VR experience can be accessed on a user-by-user basis or shared with multiple users at once.

In augmented reality, 2D or 3D virtual content may also be accessed using an HMD (or smart glasses, AR glasses, etc.), but in AR, the HMD is transparent such that the virtual content appears overlaid onto a portion of the real world and the real world can be viewed while accessing the virtual content. The user may access information from both the virtual world and the real world such that the virtual content augments the real world with respect to what the user views. An AR experience can be accessed on a user-by-user basis or shared with multiple users at once.

Virtual reality tends to be the most immersive of the two because VR blocks out the real world while augmented reality allows you to peek out at the real world while consuming or viewing virtual content. Aspects of the Metaverse may exist and be accessed within both a virtual reality session and an augmented reality session.

IP in Virtual Reality and Augmented Reality

When inventions are claimed in VR and AR, IP practitioners will typically use terms to match the world, such as “augmented reality headset” or “virtual object.” These terms differentiate from real world physical objects in that “virtual objects” are displayed on a screen (e.g., the “augmented reality headset”), rather than existing as objects placed in physical space in the real world.

The systems and methods claimed for both VR and AR include real world steps and software determinations carried out by processors executing software code to analyze interactions and display content in an HMD or to display content as augmented reality content on an AR headset and to appear as overlaid on a real-world object.

Rejections from the USPTO for these types of claims typically include prior art that combines a non-VR (or non-AR) reference with a VR (or AR) reference.

We have yet to determine whether Metaverse-type inventions will be rejected in a similar manner. On the other side of patenting Metaverse-type inventions, what will infringement assessments of such inventions look like?

Infringement in the Metaverse

This episode of Patently Strategic will take a closer look at how particular Metaverse-type method and system claims may be assessed for infringement purposes. In particular, the parallels that can be made between real-world devices and software implementations of those real-world devices will be discussed including:

• Infringement of Method Claims in the Metaverse
• Infringement of System Claims in the Metaverse
• The Doctrine of Equivalence

Discussion Panel

Kristen worked on VR and AR patents for nearly a decade, including those held by some of the Valley giants looking to define the space. We honestly couldn’t think of a better person to lead this conversation! Kristen is also joined today by our always exceptional group of IP experts including:

• Ashley Sloat, President and Director of Patent Strategy at Aurora
• David Jackrel, President of Jackrel Consulting
• Ty Davis, Patent Strategy Associate at Aurora
• ? Sophia Li, Patent Strategy Fellow at Aurora

Case Law Resources

Case law accompanying the discussion can be found here:

• Crown Packaging Technology, Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1312 (Fed. Cir. 2009).
• Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1531 n.6 (Fed. Cir. 1987)
• Ross Winans v. Adam, Edward, and Talbot Denmead, 56 U.S. at 342-43
• Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 21, 29 (1997)