Extended Reality And Challenges In Patent Prosecution And Litigation
The word “extended reality” (XR) refers to all immersive technologies, including augmented reality (AR), virtual reality (VR), and mixed reality. (MR). It involves a combination of human and computer-generated graphics interaction using specially designed hardware and software. Companies across the world are investing in this innovative tech that promises to revolutionize the way humans work, play, and learn in the future. However, while technology is advancing at breakneck speeds, the legal system for checks and balances is finding it hard to keep up. XR technologies have already begun posing issues to which the IP laws have no definitive answers.
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The XR Technologies
At present, three techs form a part of XR, these are:
AR is used to enhance the user experience by overlaying virtual information and objects onto real-life scenes. AR can be accessed via glasses, tablets, and smartphones, which makes it very accessible. Pokemon Go is an example of the use of AR in gaming. The ‘try-on’ feature available on some apps which allow shoppers to virtually try on make-up etc., is another example of how AR is helping to boost user experience in the retail sector.
VR uses special headsets or head-mounted displays to create an entirely new environment from scratch. Users are fully immersed in a digital world designed by the software. Users can experience walking on the moon or swimming in the ocean while being in the comfort of their homes. While gaming and entertainment are quick to imbibe this technology, it has promising capabilities for sectors such as healthcare, automotive, construction, real estate, etc.
Also referred to as hybrid reality, in MR, real-world and digital objects can co-exist and interact with each other. It requires specialized headsets with acute processing power. HoloLens by Microsoft is an example of MR. This lens lets you place digital objects in a real room and move it around.
The mainstream adoption of XR technologies is facing several IP issues in patent prosecution as well as patent litigation areas. Let us examine each in detail.
In XR, the scope of patent protection includes the software algorithms as well as the hardware that provides the display. In countries like the USA, a first-to-file system is followed, which favors the inventor who files their application first with the patent office. Therefore, companies seeking IP protection for XR tech must file for patents at the earliest. Any delays could mean losing out to competitors in obtaining a patent. However, it must be remembered that the quality of the patent application is not compromised in the process. A patent application that lacks quality can present validity challenges in the future, therefore, one must always proceed with caution when filing a patent.
The area of patent claims is another problematic zone for inventors. Patent claims describe the extent of an invention’s protection. At present, two major issues confront companies. First, is that the patent protection granted to physical embodiments of a product does not extend to the virtual world. For example, a Rubik’s cube is a novel invention that includes internal springs as a limitation. But in a digital Rubik’s cube, this component is lacking, and hence the online Rubik’s cube will not be considered an infringement.
Second, is the extent of coverage provided by claims. As technology continues to evolve, there may emerge applications of patented technology that one cannot foresee, and which do not amount to infringement. It is therefore becoming increasingly important to draft claims that are extensive in nature in order to expand the protection coverage.
Since XR technology is relatively new, IP laws are constantly being revised to accommodate litigation in the field. As of now, there are no standard guidelines that apply to all cases, and each is decided based on how the courts construe patent claims. Furthermore, each jurisdiction has a different set of laws, which causes each case to be dealt with differently. This makes it imperative for innovators and companies to develop clear and concise litigation strategies to cover all aspects.
As more companies seek to enter the domain of XR technology to reap its potential benefits, they must tread with caution. There are a plethora of pitfalls surrounding patent prosecution and litigation in this domain. It is best to be fully aware of the challenges that lie ahead and be prepared to counter them. Hiring the right patent lawyers who are well-versed in the intricacies of XR tech is a step in this direction. They can help companies draft appropriate claims, as well as utilize existing patent laws to their advantage. It remains to be seen how the legal system evolves to incorporate the novelty bought in by new technologies. Till then, the onus of protecting their IP lies with the owner.
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