What Virtual Reality has in Common with Trolls, Railroads, and Sharks

Virtual Legality Blog

Patent trolls (also called non-practicing entities) seem likely to make an inroad into VR, given the rapid pace of technological progress and current case law interpreting 35 U.S.C. 101 (patent eligible subject matter).

The Oculus DK1 was the first HMD to bring VR to the mainstream, released to Kickstarter backers around 2013. ~3.5 years later, many major technology companies are pushing for their own share of the VR market. The VR industry is fast changing, and almost every month some kind of new prototype is either rumored or revealed.

Time and time again, when an industry is created or undergoes rapid technological progress, entities called patent trolls tend to follow. Many people are familiar with patent trolls using computer-based patent portfolios to sue large companies such as Microsoft, Samsung, or Apple. Newegg’s spat with patent trolls is well documented.

Patent trolls also have a historical basis and have existed far before the invention of the computer. When railroads first started to gain popularity in the United States, entities called “patent sharks” started to patent every conceivable invention regarding trains with little regard to practicing or selling their inventions. They existed solely to sue railroad companies, and after a period of time, technological progress slowed down and patent sharks died off.

The progress of VR technology is rapid, just like the initial progress of the personal computer and railroads. With plenty of room for improvement, VR patent applications should see a spike in numbers in the coming years.

Congress and the Supreme Court have been cracking down on patent trolls, specifically regarding software patents. The Supreme Court’s opinion, Alice Corporation v. CLS Bank, in particular, helped to invalidate a number of a software patents.

Alice interpreted 35 U.S.C. 101, a statute which prohibits patents covering abstract ideas or mathematical concepts. Patent claims that recite an abstract idea are not eligible for protection, unless the claims somehow transform the abstract idea into an inventive concept. Reciting a computer as an element is insufficient to meet this test.

The courts have generally held software to be an abstract idea, and have invalidated a large number of purely software patents (a key exception to this is a recent case called Enfish). Because VR entails interaction of hardware, software and motions by a user, I think that VR provides an easy way to overcome the Alice framework.

Emulating objects in a user’s visions or patenting gestures does not feel like an abstract idea, and it should be relatively easy to overcome the abstract idea limitation with an Examiner in the USPTO. Drafting a claim to recite manipulating virtual objects with a VR HMD (or causing the user to manipulate objects) is not an abstract mathematical concept recited on a generic computer. An example of this kind of patent would be Purdue’s new patent, claiming that projecting a nose on a VR screen would reduce motion sickness for the user. That patent will last for approximately twenty years from the date of grant.

So what are we going to see in the near future? Without the entry barrier of 35 U.S.C. 101, it should be easier for both legitimate companies and trolls to patent concepts and methods within virtual reality. There is a lot of design space in VR for game studios and multiple industrial uses – a proliferation of patents and accompanying patent litigation is all but inevitable. As the VR industry matures and the technology progresses, we could see a shift by trolls from asserting software patents to asserting VR patents against large and small companies. While I personally hope this does not happen, barring any change to the law, it appears that the stars are aligned and major patent litigation is on the horizon.