IP Review Summer 2018

14 Augmented reality: IP protection The drive for augmented reality (AR) has given rise to a breadth of new technologies, especially in the areas of image processing, data processing, optics and communications. Augmented Reality As you may have seen from our article in the previous edition of the IP Review, AR technologies can be grouped into handheld AR, which is a key space for AR content developers, and head-mounted displays (HMDs). With increasing amounts of investment and public interest in AR, there comes the need to protect sufficiently the intellectual property (IP) in the technologies being developed to ensure a return on R&D investment costs. In this second article, we will take a closer look at how current patent applicants have been navigating the patent system to seek protection for handheld AR content and HMD technology. Handheld AR content The space of AR content is growing rapidly, especially since smartphones became AR enabled. Because this is an area of significant expansion, overlaps between the concepts and ideas of different inventors can be expected. Additionally, since most AR content is embodied as software or as a computer program, AR content developers seeking intellectual property ownership will most likely have to navigate around patentability exclusions which exist for computer related inventions, methods of gaming and abstract ideas, especially in the US and Europe. Niantic, Inc. found themselves facing these problems of originality and patentability exclusions when pursuing their US patent application for “Linking Real World Activities with a Parallel Reality Game” [1]. Niantic initially claimed “a computer-implemented method for providing a parallel reality game”. Paraphrasing their claim, this involved: hosting a virtual world on a game server with a geography that parallels the real world so that a user can navigate the virtual world by moving in the real world; and introducing game elements [i.e. Pokémon] linked to the real world into the virtual world and modifying these game elements based on player interactions. In other words, this describes the player interactions taking place in Pokémon GO, where a player would view and interact with game features linked to the real world from the virtual world using their smartphone. Firstly, the claim was rejected for relating to an abstract idea - a direct exclusion from patentability under US law. The patent examiner particularly contended that the claim related to using a computer to perform a series of mental steps that can be regularly performed by a human, and the claimed computer elements of the claim such as a “game server” do not add meaningful technical contributions since they perform conventional and generic tasks. Secondly, the Examiner contended that the invention was fully disclosed in and thereby anticipated by existing prior art patent publications, including one from Microsoft [2]. Microsoft’s publication related to “combining real-world actions and virtual actions in a gaming environment”, which particularly involved users travelling to specific locations to complete virtual location-based tasks to gain rewards. This effectively highlights an overlap between Niantic’s broad claim to location-based parallel reality games and existing similar concepts that could fall within that claim. However, Niantic’s specific implementation of a