Augmented reality (AR) is the latest buzzword in technological circles owing to its ability to transform the way businesses and individuals learn, work, and play. Virtual Reality (VR) and Augmented Reality are both crucial components of the Metaverse that promises to create a single, universal, and immersive virtual world.
While the time is ripe for new tech, these strides of development are being weighed down by challenges facing them. Since the quick advancements in tech are not matched by changes in IP laws and regulations, the road ahead seems tough for innovators.
The emergence and dissipation of both AR and VR in several sectors have already begun to present new IP issues for innovators, businesses, consumers, and courts of law. Much like the rise of the internet that necessitated cyber laws in the 1990s, these new areas too, require legal scrutiny. Patent litigations have already started in this domain, and as it extends to newer aspects of our lives, these challenges will only intensify.
While AR and VR are both software that uses the internet to showcase a virtual world, they work in different ways and thus have unique IP laws issues associated with them. To understand this, we must first learn what distinguishes the two techs.
In AR, the real world is used as a backdrop and blends digital elements into it, usually with the use of a smartphone. By overlaying digital content onto real-life scenarios, it enriches the user experience and creates an interactive environment.
VR, on the other hand, is an entirely simulated experience built from the ground up. It is used to generate images, sounds, and other sensations in a virtual world. Thus, VR is a fully immersive experience that can only be accessed using specially designed headsets.
There are several examples of AR that we see around us. The virtual ball trail in a game of cricket, the first down marker in football, shown with a virtual yellow line, or the famous Pokemon Go game that had people walk around with their heads buried in their smartphones looking for Pokemon. Other areas where AR can be useful include:
Patent filing for AR is the same as other technologies, but differences arise when dealing with user interfaces like AR hardware and motion-tracking technologies. Tech giants like Microsoft, Samsung, Google, LG, Sony, etc., have successfully filed and published patents related to AR and VR headsets. The areas where patents are being filed extend beyond the hardware to method claims for the practical applications of AR tech as discussed in the above use cases.
AR patent infringement cases have already begun springing up in courts. ESP, Inc. v. HTC Corp., Case No. 3:17-cv-05806 (N.D. Cal.) was one such case that dealt with the issue. ESP claimed that HTC’s Vive headset infringed on three patents. HTC moved to dismiss the claims as impermissible due to being a patent-ineligible subject matter under 35 U.S.C. §101. The courts decided the case based on the eligibility standards set by the Alice Framework and found ESP’s patents to pass the test and thus contain eligible subject matter.
A case related to the application of AR was filed by Lennon Image Technologies LLC (“Lennon”) against retailers like Macy’s, and Bloomingdale’s alleged infringement. The retailers were using a webcam tech that allowed users to try on products by superimposing them on their images. While the defendants claimed that this tech was different from Lennon’s patent, ultimately, they removed the feature from their sites settled.
The rising litigation is also turning into a matter of concern as several NPEs are spearheading campaigns that could result in stifling innovation. In the above case, Lennon Technologies, an NPE, was successfully able to prevent the retail use of its tech in the retail segment.
The litigation trend in AR patents poses critical questions about the detailed description of claimed uses of AR that will be required in the patent specification to satisfy the written description and enablement requirements of Section 112. Courts are increasingly rejecting patents for their inability to satisfy either written description or enablement. The solution could be to furnish as many potential uses and applications as possible. But it is possible that some aspects of the tech may become valuable as AR evolves, and it is not impossible to peek into the future. Therefore, just as the U.S. Federal Circuit Court of Appeals and the U.S. and the U.S. Patent and Trademark Office (USPTO) did for antibody patents, it is time for the patent offices to provide precise guidelines for meeting 112 requirements in the case of AR and VR technology.
Trademark infringement in AR is likely to increase as this tech pervades various aspects of our daily lives. Virtual trademarks can be used anywhere in the virtual world, thereby creating serious legal issues. The advertiser may or may not be the legal owner of the trademark and this will make it difficult for the users to establish authenticity.
In Marvel Enterprises, Inc. v. NCSoft Corp., the latter created a video game with avatars and heroic outfits that were similar to Marvel’s superheroes. However, the court rejected Marvel’s claim on the grounds that the names were not used in a business sense or directly in conjunction with the product’s sale, distribution, or promotion, and thus did not constitute trademark violation.
Brands like Nike, Gucci, and Prada are already registering their trademarks in classes specifically relating to virtual goods for use in AR/VR environments. Copyright law too would see new challenges in the fair and authorized use of works. Considering that AR has the capability to amplify sounds, if somebody records a distant concert and corrects the sound levels, would it amount to a copyright violation? This is just the beginning of an era that is going to expose a complex set of legal and IP issues in the near future.
The legal, social, and ethical challenges that could emerge from the use of AR and VR tech can prove a nightmare for safeguarding IP. IP lawyers and businesses need to be extra cautious when drafting patent applications or licensing agreements in order to cover as many bases as possible. Till the time legal guidelines become clearer and designed to address AR/VR issues, precaution seems the only cure!
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