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This is part of a continuing series of posts on IP issues surrounding virtual reality and augmented technology. Other posts can be found here.
In the previous post we looked at the design patent potential of VR user interfaces. One of the reasons to obtain design patent protection on the look of a graphical user interface (GUI), as opposed to a utility patent on the actual underlying functioning of system, is that the former will encounter significantly less resistance at the patent office than the latter.
If a young, user-facing, start-up is looking to add some patents to their portfolio, then there is no faster or cheaper way to do so than through a design patent. Unlike utility patents, design patents do not suffer from the recent spate of patent invalidations issued by the US Supreme Court.
Where pure software companies might be stymied by the USPTO's reluctance to grant patents on computer implemented methods, Virtual Reality (VR) based companies have a easier path to patentability. The reasons for this are varied as their are decent VR concepts floating around but reasons can be summed up in two points.
1. VR software is rooted in computer technology.
The USPTO has determined that one way for software to prove its non-abstract nature is to solve a problem that is rooted in computer technology. Software for hedging market bets is not rooted in computer technology, nor does it solve a fundamentally issue raised by such. For finance software, the computer is the platform, not the point of the technology. Essentially, there exists a non-computer implemented way of achieving the same result (money!), therefore using a computer to perform the same task does not make the idea abstract.
Virtual Reality, by its definition, has no non-computer implemented analog. VR is fundamentally different from reality and is a completely computerized environment, Thus, any concept regarding VR, including the concepts tied to generating VR environments, are necessarily routed in computer technology.
2. Most VR Patents will be directed to some user experience improvement or implementation.
A key distinction made by the USPTO regarding the patentability of software is the determination of if the software improves the functioning of the technology or not. High frequency trading algorithms make money, but they do not make any improvements to the functioning of the underlying computer.
VR patents will likely be drawn to improving the way that users are immersed in the virtual environment, and hence improve the fundamental aspects of the technology.
As such, while software as a category of patentable subject matter is facing strong headwinds at he USPTO, patents directed to VR technologies should have an easier time achieving allowance.
J Garner
White Plains, NY
