The Metaverse has emerged as a hot topic in the tech space. With big names like Sony, Facebook, Microsoft, and others making huge investments in the domain, it promises to revolutionize the way humans use digital technology in the future. Understandably then, there is a clamor of companies big and small jostling for their piece of the metaverse pie. And Virtual Reality is one such component of the metaverse that has caught their attention. Â
The metaverse is an open and shared virtual world that can be accessed through Augmented Reality, Virtual Reality, connectivity technologies, etc. In this article, we explore Virtual Reality as a future tech and a means to participate in the digital metaverse. Â
Virtual Reality is software that creates an artificial simulation of the real world. Using a VR headset, the user can interact and enjoy an immersive experience with the 3D computer-generated environment. Besides the software, VR tech consists of headsets, controllers, motion trackers, 3D cameras, etc., which together create a virtual environment. Â
It is an emerging tech that is finding utilization in domains such as sports, gaming, education, healthcare, retail, automotive, medicine, etc. For example, in online retail, VR enables you to try on makeup on your face or see how a piece of furniture will look in your room. Given the wide application VR finds in various sectors, there is a significant opportunity ahead for this tech. Â
But as companies foray into VR and invent tech for its use, they are faced with the question of IP protection. VR employs several complex processes and components to function in both hardware and software. Does this mean that a business has to patent both the software and hardware involved? How does VR patenting work? Given that VR is essentially software, how do courts assess VR-related patents?
Like any other patent applied for at the United States Patents and Trademark Office (USPTO), VR patents too need to satisfy the eligibility criteria of being novel, unique, or an improvement over existing tech, and industrially applicable. Many tech companies have successfully patented their VR technologies. Facebook has a patent for the prevention of user interface occlusion in a virtual reality environment. Apple has secured a patent that covers enabling drawing in a computer-generated reality environment. Â
The laws related to patenting of software in the United States are at present confusing and complex. The U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank International, famously known as the Alice Framework was one of the first related to software technologies. It dealt with one of the four components of patentability, i.e., eligibility. The Alice case made software and computer-implemented technologies, like VR, ‘abstract ideas’ that are not patent-eligible. It set up a framework to determine ideas in patent-ineligible claims. Â
While the Alice Framework applies to all domains, its ripples have been felt most in software-related technologies. Courts, attorneys, and patent offices are trying to grasp the nuances of the framework to understand what is and is not patentable. This has led to many inconsistencies as there are no clear or consistent standards for applying the Alice Framework. However, in 2019 the USPTO released a new set of guidelines that has created a more coherent process and reduced the number of Alice rejections
Once a company has patented a VR technology, they are eligible for the same protection as awarded to other patents. But it is vital that the business owner take precautionary measures in order to protect their technology in the wide online world. For example, explicitly adding a clause in their terms of service that content developers may only reproduce patented VR goods after obtaining proper authorization. Â
In the EMI Group N. Am. V. Intel Corp. case, the Court ruled that infringing VR products must perform substantially the same functions in substantially the same way, with a substantially similar result as that of the patented invention, in order to prove infringement.Â
Copyrights protect original works of the mind for a limited time period. Once a copyright is received, only the owner can rightfully reproduce, prepare derivative works, distribute copies, display the work publicly, and license others to use their creation. Â
An example of a copyright infringement in VR would be if a third party creates a virtual reality that uses real-world copyrighted IP, then they can be sued. While copyrights may not protect the idea or mechanics of a game, a copyright infringement may occur if a work is substantially similar to the original work or consists of imitative key elements of the existing work, like the code or other specific creative assets. Â
To ensure safety, licensing agreements too would need to be reviewed in order to address the problem of infringement. The boundaries of ownership in the real and virtual aspects of the product need to be stated clearly to avoid future legal troubles. Â
Trademarks to protect brand names, logos, etc., have been around for some time, but their usage in VR is a relatively new experience for businesses. In certain cases, trademarks in the virtual world do not operate as they do in the real one. Â
For example, in the case of Marvel Enterprises, Inc. v. NCSoft Corp., the latter designed a video game that had avatars and superhero costumes identical to the superheroes owned by Marvel. But the court dismissed Marvel’s claim on the grounds that the trademarks were not used in a commercial sense or directly in connection with a sale, distribution, or advertising of the product, and hence did not amount to trademark infringement.
The world of IP protection is complex, more so when it comes to new-age technologies that are hard to define in a structured framework. But the expanding scope of these technologies necessitates the need for IP laws to evolve and address the needs of technology owners. Struggling to cope with emerging trends takes away the incentive and encouragement for creativity that forms the very foundation of Intellectual Property Rights. While it is important that developers remain vigilant and take adequate steps to safeguard their works, the onus of creating a balance and safeguarding the rights of the inventor lies with the legal system.
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