IP Review Summer 2018

15 parallel reality game became a point for establishing novelty over the prior art. They stepped away from the broad concept of simply interacting with game elements in a parallel reality game, and instead limited the claim to specify that game elements are introduced to certain locations in the virtual world based on requests made by external real-world sponsors. Whilst the first objection that the initially- claimed invention is an unpatentable abstract idea may seem unwarranted on the surface, the patent examiner’s thoughts can find sympathy if the direct language of the initial claim is considered. The initial claim lacked any indication as to the technical mechanisms that would allow for modifications and interactions with the virtual world to take place, whilst merely stating that such steps occur. Hence, in the patent examiner’s eyes, the claim only presented an idea or abstract concept of parallel-reality gaming, rather than a tangible invention that could execute this idea. In addition to the above amendments made to establish novelty, Niantic made amendments to ensure that each feature or step of the claim was linked to a technical component of the system. As an overall result, they were able to argue that their new claim solved a technical problem which led to improvements in how virtual elements can be placed in a virtual world, and therefore the new claim should be considered as both non-abstract and technical. Considering what happened to Niantic’s application, it is increasingly important to ensure that AR content developers file patent applications with a clear technical advantage or contribution to the AR field in mind, whilst containing enough technical content and implementation details to establish novelty over similar or overlapping ideas. From the perspective of patentability exclusions, although only the US Patent Office’s abstract idea exclusion was discussed above, the European and UK Patent Offices have similar attitudes where they require for there to be a technical advantage or contribution by the invention for it to be patentable as a computer program or method of gaming. HMDs HMD developers can gain IP protection for a number of aspects that complete a HMD package. Firstly, we have seen patent applications directed towards the more fundamental operations and mechanical aspects of HMDs. For example, Daqri successfully made claim to a novel HMD with a retractable display, albeit after having to amend their claim to distinguish their HMD over a combat weapon-site helmet by explicitly claiming its application for more commercial AR [3]. Magic Leap may find success in protecting HMDs that use light field technology as opposed to “conventional” screen overlays [4]. However, novelty could fast become an issue when attempting to claim the more “conventional” fundamental aspects of HMDs. For example, Microsoft currently have a US patent pending for a Mixed Reality Display Device [5] which broadly attempts to claim a HMD that comprises a display, lens system and a curved Fresnel combiner. As expected for such a broad claim, the US Patent Office has found there to be a significant overlap with existing HMD technologies and has cited several patent publications that are believed to be relevant, including Google’s “eyepiece for see-through head wearable display” which uses Fresnel reflections to guide the display light [6]. HMD developers may therefore find more value in claiming patent protection in more low-level functional or application specific features with respect to their use with HMDs. For example, Daqri have successfully made claim to a HMD comprising conventional features, and additionally memory storing instructions that can be executed to interpret visual gestures of a user in a specific technical way [7]. Similarly, Microsoft have successfully claimed for a HMD with conventional components, with the processors configured to detect and feedback emotions of a user [8]. In such cases, it could be tempting to abstract the claimed features away from HMDs in order to gain broader protection, e.g. for interpreting visual gesture or detect emotions not necessarily with a HMD. However, this may open the claimed invention up to citations of prior-art that may not be related to HMDs or even AR technology. However, as we have seen above, there is a risk of abstracting the idea too far and landing in the patentability exclusion zone. IP protection for HMDs does not end with patents. Undoubtedly, the aesthetics of HMDs are almost of parallel importance to their technical performance, since this will be a determining factor of their success when they hit the marketplace. In this respect, there are plenty of registered designs being filed for HMDs, including by Magic Leap and Daqri who have registered 10 and 5 US designs, respectively. The term of registered design protection often exceeds the term of a patent, therefore can be a strong way to protect the aesthetic appearance and non-functional aspects of HMDs. Overall, HMD developers can gain a package of IP protection to compensate for both the technical and aesthetic aspects of HMDs through a combination of patent and design protection. Where it might become difficult to establish novelty over the more fundamental technology in HMDs, developers can find value in claiming more functional or application specific features, where the claimed features are grounded in HMD hardware. References [1] US Patent Publication No. US9669296(B1), Niantic [2] US Patent Publication No. US2011/0319148 (A1), Microsoft [3] US Patent Publication No. US9625724 (B2), Daqri [4] US Patent Publication No. US2017293141 (A1), Magic Leap [5] US Patent Publication No. US2018003972 (A1), Microsoft [6] US Patent Publication No. US2016131907 (A1), Google [7] US Patent Publication No. US9652047 (B2), Daqri [8] US Patent Publication No. US9824698 (B2), Microsoft Rajan Chauhan rchauhan@withersrogers.com To find out more contact John-Paul Rooney jprooney@withersrogers.com