Intellectual Property Concerns In Augmented Reality

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. 

Patents In AR

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.

Copyrights & Trademarks

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!