Protecting your patents & intellectual property in VR

Virtual reality (VR) might be the next big thing in the gaming space – but what are the legal considerations that need to be kept in mind with this new technology? Here are some thoughts you may want to keep in mind to protect your intellectual property as development in VR continues to grow.

Protecting patents

Patents within the VR space go back as far as 1993 when a patent for a virtual reality helmet was first filed. Although depending on how you’re definining VR, it could be argued that the first patent was filed in 1961. Many companies are filing patents now and have been filing patents to protect the technology behind headset and hardware developments, although it’s worth noting that patents can take a very long time to process. It can take a very long time to receive protection for new technology – for example, two Oculus patents originally filed in 2016 were just published online in 2018 for a haptic VR glove surface. Apple also filed a patent in 2017 that was issued over a year later by the US Patent Office for a compact VR headset with eye tracking.

Filing patents for VR is no different than in any other technology space.  There may be nuances as different areas become more ripe for patent filing and see more activity, like user interfaces and motion tracking technologies, but the base elements needed for registration are the same: the invention must be of a patentable subject matter, novel, non-obvious and useful.

Odin Law and Media doesn’t handle patents, but we know some great folks who do and are happy to make connections where we can.

Protecting copyright and IP

Copyright laws, at their core, provide exclusive rights to the creators of expressive works. They protect the fixed expression, not underlying ideas. Altering the fabric of reality through a new lens, whether it’s virtual or augmented, may affect how copyright law applies but we don’t know how yet.

For example, virtual worlds constantly change and are altered potentially based on what one person is viewing. Tracking exactly what is seen and by whom may prove challenging.

More fundamentally, protecting copyright in games and considering how games are played is going to shift. We’re already seeing a lot of issues as copyright laws do not protect the idea or mechanics of a game (see, e.g., the battle royale issues unfolding now). But copyright infringement depends on whether the allegedly infringing work is substantially similar to the original work or consists of copied key elements of the existing work, like the code or specific creative assets.

Developers may need to review and renew their license agreements with rights holders to ensure that VR is addressed.  Licensors and rights holders should have conversations about who owns the VR version of content – for example, content relevant to live events, film and TV streaming. It will be important for both parties to address these terms early on.

The bigger question will be, per this article on Techcrunch, “where does the developer’s right to the software providing the content end and where does the VR provider’s right to the software empowering the user’s experience with such content begin?”

We will most likely see the courts look back to precedents set by more nascent virtual world technologies, like Linden Lab’s Second Life. For a good overview of the copyright issues in Second Life, check out this law review article from a decade ago. The biggest practical takeaway for developers is that copyright ownership of virtual creations can – and should – be addressed in the license.

Protecting trademarks

Similar to copyright and patents – trademark law is not new. However, some ways that trademarks are being used are relatively new in relation to VR and will take extra precautions for brands and developers to protect.

One interesting example will be more emphasis on the protection and usage of third party trademarks. Developers or publishers may need to make sure they get permission from trademark owners to avoid trademark infringement. As a brand with a trademark, businesses will have to monitor the usage of your trademark is this wild new world. Importantly, there are not good tools for this yet. Usage is not tantamount to infringement as some uses can be fair use, although there have been many debates within the entertainment industry, especially cinema law, for many years.

Whether and how VR providers will begin selling items within a VR world featuring items bearing a third party trademark is yet unknown, as is how this will be addressed. If the trademark is being used “in the course of trade” (if a VR provider is getting commercial benefit from it), there’sa higher risk of trademark infringement. Enforcing any of this, however, will be another issue entirely.

This is not meant to be an exhaustive list of IP issues in VR. In fact, Brandon has talked at greater length on this subject for the ABA, Duke Law and USC Law. Law review articles have been written. Still, the landscape is uncertain, but courts will most likely look to adapt existing legal frameworks and imperfect analogies to make the law fit VR.