​​Patently Strategic - Patent Strategy for Startups

Into the Patentverse Vol. 2: AR, VR, and Virtual Infringement

October 27, 2022 Aurora Patent Consulting | Ashley Sloat, Ph.D. Season 2 Episode 9
​​Patently Strategic - Patent Strategy for Startups
Into the Patentverse Vol. 2: AR, VR, and Virtual Infringement
Show Notes Transcript Chapter Markers

We’re slipping our headsets on and heading back into the Metaverse! Earlier this year, we began our foray into this world with a deep dive into the building blocks that could very well form the structural and economic underpinnings of the Metaverse by exploring the tech concepts and IP implications surrounding Web 3.0, blockchain, cryptocurrency, and NFTs. Today we build on this, by expanding our conversation into the most likely interfaces for the Metaverse, as well as how patentability and infringement could play out as we meld innovations between the physical and digital realms.

In this month’s episode, Kristen Hansen, Patent Strategist and software patent guru here at Aurora, leads a discussion along with our all star patent panel, exploring questions including:

⦿ What is the Metaverse?
⦿ How do virtual and augmented realities fit in?
⦿ And what does infringement look like in the Metaverse or what might it look like in the future?

Along the way, the group also shares some great tips for drafting claims around the virtual world to get around physical world prior art, as well as some pointers for avoiding divided infringement for processes that are performed in a distributed manner – as will almost always be the case with Metaverse-based innovations.

Kristen worked on VR and AR patents for nearly a decade, including those held by some of the Valley giants looking to define the space. We honestly couldn’t think of a better person to lead this conversation. Kristen is also joined today by our always exceptional group of IP experts including:

⦿ Dr. Ashley Sloat, President and Director of Patent Strategy at Aurora
⦿ David Jackrel, President of Jackrel Consulting
⦿ Ty Davis, Patent Strategy Associate
​⦿ Dr. Sophia Li, Patent Strategy Fellow

Before joining the group, as we often do, we’d like to provide a short primer on some key concepts in this episode for those newer to the world of patenting. This primer covers:

⦿ Method vs. Apparatus Claims
⦿ Doctrine of Equivalents

** Resources **

⦿ Show Notes: https://www.aurorapatents.com/blog/into-the-patentverse-vol-2-ar-vr-and-virtual-infringement
⦿ Slides: https://www.aurorapatents.com/uploads/9/8/1/1/98119826/2022_psm_metaverse_ii.pdf

** Follow Aurora Consulting **

⦿ Home: https://www.aurorapatents.com/
⦿ Twitter: https://twitter.com/AuroraPatents
⦿ LinkedIn: https://www.linkedin.com/company/aurora-cg/
⦿ Facebook: https://www.facebook.com/aurorapatents/
⦿ Instagram: https://www.instagram.com/aurorapatents/ 

And as always, thanks for listening! 

---
Note: The contents of this podcast do not constitute legal advice.

WEBVTT

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G'day and welcome to the Patently Strategic Podcast, where we discuss all things at the

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intersection of business, technology and patents. This podcast

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is a monthly discussion amongst experts in the field of patenting. It is for inventors,

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founders and IP professionals alike, established or aspiring.

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In today's episode, we're slipping our headsets on and heading back

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into the Metaverse. Earlier this year, we began our foray

00:26.532 --> 00:29.917
into this world with a deep dive into the building blocks that could very well

00:29.965 --> 00:34.122
form the structural and economic underpinnings of the Metaverse by exploring

00:34.167 --> 00:38.292
tech concepts and IP implications surrounding web, three blockchain

00:38.352 --> 00:42.247
cryptocurrency and NFTs. Today, we build on this by

00:42.280 --> 00:46.242
expanding our conversation into the most likely interfaces for the Metaverse,

00:46.302 --> 00:49.747
as well as how patentability and infringement could play out as we

00:49.780 --> 00:53.577
meld innovations between the physical and digital realms. In this month's

00:53.607 --> 00:56.922
episode, Kristen Hansen, patent strategist and software patent

00:56.967 --> 01:00.447
guru here at Aurora, leads a discussion along with our allstar patent

01:00.492 --> 01:03.882
panel, exploring questions including what is the Metaverse?

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How do virtual and augmented realities fit in? And what does infringement

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look like in the Metaverse? Or what might it look like in the future?

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Along the way, the group also shares some great tips for drafting

01:14.367 --> 01:17.622
claims around the virtual world to get around physical world prior

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art, as well as some pointers for avoiding split infringement for processes

01:21.657 --> 01:25.402
that are performed in a distributed manner. This will almost always be the

01:25.420 --> 01:29.052
case with metaversebased innovations. Kristen worked on VR

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and AR patents for nearly a decade, including those held by some

01:32.320 --> 01:35.727
of the Valley giants looking to define the space. We honestly couldn't

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think of a better person to lead this conversation. Kristen is also joined

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today by our always exceptional group of IP experts, including Dr.

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Ashley Sloat, president and Director of Patent Strategy here at Aurora.

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David Jackroll, president of Jackroll Consulting ty Davis,

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Patent Strategy Associate at Aurora and Dr. Sophie Lee,

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Patent Strategy Fellow Before joining the group, as we often do,

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we'd like to provide a short primer on some key concepts in this episode for

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those newer to the world of patenting. The first is the distinction

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between method and apparatus claims. This comes up when the

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group is discussing virtual infringement or what happens when things invented

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in the physical or virtual world potentially infringe on one

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another. If you're a regular listener, you'll recall from prior episodes

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that the claims of a patent are the heart of an application and point

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out the exact invention boundaries of what the applicant

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believes she's entitled to own, specifically, the exclusive rights

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that are or would be granted to the patent applicant. What we

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haven't previously discussed much is that there are different types of

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claims. Method and apparatus claims are two types of independent

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claims. While the distinction between independent and dependent claims

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is outside of the scope of this episode, it is helpful to understand the

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difference between method and apparatus claims when it comes to infringement.

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Method claims typically recite steps required to achieve a result and

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are used to protect making a product, using a product, or providing

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a service. They're about protecting the process.

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An apparatus claim, on the other hand, defines a product, device,

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or system, but it does so in terms of its components.

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Put another way, apparatus claims define what the invention is

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versus what it does to prove infringement. For method claims,

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it must be shown that an infringing party or machine performs each

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step in a given claim. For apparatus claims,

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infringement is shown by proving that a party used,

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made, offered for sale or sold or imported a product that includes

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all claimed pieces of a particular apparatus or product.

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The other IP concept that's important to grasp for this episode is something

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called the doctrine of equivalence. This is a judicial principle

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created to prevent would be infringers from avoiding liability

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by simply making minor or insignificant tweaks to a

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patented invention. This doctrine allows patent holders

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to file infringement claims even when the competitor's product isn't identical

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to or doesn't literally infringe upon the patented invention.

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This allows the court's room to examine if the potentially infringing

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device or method matches the function, way, and result

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of the claimed invention, or whether the substitute plays a role substantially

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different from the claimed invention. As you'll hear shortly,

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the notion of equivalence between physical and virtual worlds could play a very

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important role in determining infringement in the metaverse.

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One final editorial note before handing you off to the panel,

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and it's an important one to make, especially as we begin our

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discussion around the interface of the metaverse.

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When it comes to new and buzzy topics, there always seems to be

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this pattern that goes from confusion and creative exploration

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to unfettered and unquestioned excitement to a steep cliff of

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it's only cool to be cynical now, while still pretty early in the

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evolution of these technologies, it feels like there's been a growing sense of the latter.

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It's not to say that some of that cynicism isn't coming from a logical place

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as it pertains to the results we're seeing relative to the hype and investment.

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Facebook, or rather, Meta now is spending 10 billion.

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That's with a b dollars a year on what some are already referring

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to as the metaverse money pit. Will that investment ever pay off? It's hard

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to say, and frankly, many open and decentralized web advocates

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hope it doesn't. But in any case, it's hard to deny or question

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that the way we interact with our data in the digital world will evolve

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and become more immersive. It's no less inevitable than

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the evolution from the indirect way we use a mouse to interface with objects on

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a display to how we now interact with the digital world via

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capacitive touchscreens. We're closer, but it's still

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layers of abstraction removed as invested persons in the innovation

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economy. There's a conversation worth having around the shapes this could take

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and how it plays out with idea protection. Some would argue that a lot

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of coverage around the Metaverse is just to capture clicks. Others would

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say it's too soon to have meaningful conversation around something that lacks so

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much definition. For our audience, we look at this differently

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in the world of IP. We think in 10, 15, 20 year

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Horizons Innovators define the undefined, and we intend

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to walk through and try to make sense of this uncertainty together.

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Take it away, Kristen. We're going to do a Metaverse discussion here

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today. Do you want to skip

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the ice breaker and all that? Since days maybe a little short on time.

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So I think the only problem solving I was going to bring

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one quick thanks to everybody's attention for that, just because I think it's kind

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of I've never seen it, but we've had several fall into this hole recently,

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so I was going to just enlighten basically Dave, but the team too,

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if you guys don't recall. So yes, I'll just jump in.

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So we had this really weird situation where

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on several days late last year and early this year, we filed big

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IDS's and they like, never showed

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up in the image file wrapper, just until

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a point where actually got a notice allowance for a few of the cases.

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An examiner had never seen them because they were never in the file wrapper.

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So we obviously, like, realized this and apparently

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leave it to the PTO to have a weird back end

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system where apparently, like, stuff is where you upload stuff,

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where you file stuff. Things have to be like, somehow copied over to the

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file rapper, I'm sure, because maybe they don't put everything,

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I don't know. Regardless, we had to

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basically, at least I think, called into the Electronic Business Center.

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They had to escalate it and it took like weeks for

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them to locate all of this and then get it pushed over to the

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image file wrapper. And meanwhile, I had contacted the examiner

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for the allowed cases and basically said, here's our proof that we

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have to keep your filing receipts, because that was the proof we had that we

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did indeed file them and that allowed them to

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track them, but basically said to the examiner, here, we filed IDS's.

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They were timely filed. Here's the receipts, they're trying to dig

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them up, you know, please, like, work with us

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on this. And so he had independently kind of been watching it. I think it

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had emailed me separately when things started showing up on

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his end. But then but yeah, it took weeks. And so we had this happen

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across two or three clients.

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So it's a really strange thing. Nothing on our end that

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we had done, but just like these ideas have fallen into a black hole

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in the PTO. So just weird things,

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but just be aware that a few of the things you have to basically call

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EBC and then they need to escalate it and then they have to find

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it, but you have to have your filing receipts and whatnot.

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So fun fact,

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Ashley, I never did ask you this. Did you file FBH

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or 1449 or was it an old form? Was there anything

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you could track down weird like no, I think we had the most current

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FBO eight. It was across different clients

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too, so it wasn't even like some kind of weird because they have

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size requirements and stuff. It wasn't even some kind of weird.

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There was a PDF in there that broke the system, you know what I mean?

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Because it was just a customer client. As far as we know, there's nothing

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but thank goodness we saved the filing receipts because that

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was the one thing that we could say. Well, they were timely filed. We had

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it was really strange. But it happened, like I said, across two

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or three different clients and across at least three to five

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different cases and different dates too.

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Some had the same date and some were across different dates. So it's really weird.

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So it wasn't even like a weird PDO outage, you know what I mean?

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That the weird thing. Do you check EFS now?

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What do you do?

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Somehow check that it shows up in a certain time

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frame or something? How do you I think Alisa said she was going to start

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like the next day going back in and verifying that it did show up.

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And I think this also puts a spotlight on making sure you're doing your

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notice of allowance checks that we all should be doing

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where you're like verifying that all the references have been reviewed, but even

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more so, like cross referencing that to what you think you filed versus

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what's actually showing up. It's one thing to look at all the IDS's in

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the image file wrapper and say, oh yeah, they were all considered. It's a whole

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other thing to not realize that some ideas just never

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showed up. Right. It's a

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really weird thing. It really just puts a spotlight. Like not only is there like

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making sure all the things are right in EFS web. But making sure that all

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the right things are there that you think you filed because

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clearly some stuff and I guess the other

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kind of not weird thing. But thing that we've been just we've

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been working on this with Dave this last week with another client.

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Making sure that all your ideal scenario.

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All your Pct changes are taken

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care of before the national phase date. You can still fix everything

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after you enter national phase, but then you have to do in every single country.

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So we've been setting a deadline for a month

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or two out from the Pct national phase, the 30 month deadline to

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record any changes so you can get that all buttoned

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up before national phase you have to do another country because

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there's also like I think from an inventorship and

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applicant perspective. I think if things aren't

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quite right, then you can break priority in some weird

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case. And I think that's what the whole CRISPR thing was about. Two tidbits.

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Hi, Sophia. We didn't do the ice breaker because we got a tight

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1 hour time frame today, although I just saw those images, and I'm really

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curious. Okay, we'll do them real quick. We'll do them real quick.

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What is this patent pat on

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the back, back scratcher background?

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Yeah, it's a pat on the back. It's a self congratulatory device.

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That is awesome. It reminded me of this meme. When you're proud of

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something and nobody cares and the guy is laying in a cake,

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I get it. Amazing. After that wedding this last week,

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I really, really get that. Yeah, it resonates.

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Okay, so today we're going to do a second discussion on the metaverse.

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And basically I want to do kind of a what is

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it? How do VR and AR fit in,

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and what does infringement look like in the metaverse? Or what might

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it look like in the Midverse in the future? Okay,

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so historically, what is the medverse?

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It's a term coined in a science fiction novel called Snow Crash.

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Neil Stevenson is the author. It was a 1092 novel.

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I have not read it, but basically it was about a couple of unlikely

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heroes who have to save the world from an infocalypse.

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Right. So an information apocalypse. It's an amazing book.

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Is it an incredible book? Yeah. Do they make a

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movie about it? I think it might be being made or something

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like that. Yeah, I've heard good things about that,

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too, either.

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Well, Facebook sure like that because they reiterated

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the entire company, and they're really working on creating

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things for the metaverse.

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But when you say metaverse, it's not always just meta or

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Facebook adjacent. It really does mean this

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kind of virtual

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world where you have pieces and parts of

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the real world that can seep in and pieces and parts of the virtual

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world that can seep out via software

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into your other data. So in practice, people call this the

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metaverse can be like beyond the universe, a space

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where you can interact with virtual objects in real life

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and with real time information. It's called

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the convergence of physical, digital and augmented reality.

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So you can imagine if you have an augmented reality situation,

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you're likely wearing some sort of glasses or headset,

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and there's content being displayed either on the headset itself

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or in sort of a virtual screen in front of you, but you can

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also see the real world through.

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So that could be kind of a metaverse in itself,

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and it can absolutely be shared amongst

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many users. The other situation that

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it's been called is kind of an embodied Internet where you can experience it

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kind of a living virtual world with your own digital personality.

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All right. And often they do discuss

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the maniverse as having its own economy because

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you can do all kinds of things, including trade

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information, trade money, make purchases,

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all kinds of things like that. So all of that

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is great, but really okay, but what is the metaverse, right?

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And so there is a capitalist, a venture capitalist,

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Matthew Ball, who came up with a way to describe the metaverse using key

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characteristics. And what he

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came up with was this is basically a world that has

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a persistence. Which means it unlocks technical limitations

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for the user to improve the metaverse's immersive nature

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and allow what they call a continuous virtual world.

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Which means you can always be in the virtual

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world. Especially if you're in that augmented reality situation where

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you can always view data from the metaverse while going

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about your regular life. And if you remember,

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years ago, Google Glass was kind of an old

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product from Google that had it was a pair of glasses with a little screen

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on one eye and it allowed you to record

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and view content basically what

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it would be like a mini phone, right? But it was

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a headset. It wasn't basically an augmented reality device.

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And many others have come further and created entire

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head mounted displays that provide this.

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So that one piece was persistence and it was

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being able to engage in both.

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The second piece of that was an interoperability. And that means

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basically they merged different virtual worlds and systems.

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So you could merge the metaverse piece,

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which could have, you know, something you're accessing,

16:32.487 --> 16:36.052
maybe you're also making a purchase in there. And then you could be

16:36.070 --> 16:37.625
going about your daily life.

16:38.812 --> 16:42.067
Scaling was important. You have the ability to increase the

16:42.115 --> 16:46.162
size of the metaver so you can connect up to other things around you.

16:46.300 --> 16:50.502
And as you can imagine, this is really the concept

16:50.532 --> 16:53.742
is similar to merging a bunch of servers

16:53.802 --> 16:57.802
or merging a bunch of different computing devices and being able to access it

16:57.820 --> 17:00.897
all together. But because you're running differently,

17:00.942 --> 17:06.532
you're running either virtual software or you're running actual

17:06.610 --> 17:09.727
other software from the real world that bleeds into the

17:09.745 --> 17:13.837
metaverse because you're accessing it through something in the metaverse. So you could

17:13.900 --> 17:16.867
have virtual points, access points,

17:16.915 --> 17:20.827
all kinds of things. And then the other piece was

17:20.920 --> 17:24.247
economy and identity and the fact

17:24.280 --> 17:27.472
that the metaverse could have its own independent economy and

17:27.505 --> 17:31.027
it could have many identities for many

17:31.120 --> 17:35.047
users. So if you imagine like, avatars, you could have five avatars for one

17:35.080 --> 17:38.257
user, or you could have a work avatar and

17:38.410 --> 17:42.427
a home avatar, depending on what you access and what you're into and

17:42.445 --> 17:45.727
your hobbies. And then it

17:45.745 --> 17:48.832
would be both digital and physical. So it would span across

17:48.910 --> 17:52.462
many aspects of life. And that's basically

17:52.525 --> 17:55.692
what I was saying. You can bleed together many software

17:55.752 --> 17:59.472
executing systems from the real world and software

17:59.517 --> 18:03.117
executing systems from virtual machines executing

18:03.177 --> 18:06.702
in a metaverse. And they don't actually execute

18:06.732 --> 18:10.422
the metaverse, but if you're calling it the Metaverse.

18:10.467 --> 18:14.167
You're having it be a piece of accessible software and you're running

18:14.215 --> 18:18.362
that software on a virtual machine which eventually

18:18.712 --> 18:22.092
connects to and runs off of physical hardware,

18:22.152 --> 18:26.387
right? So you could have multiple contributors.

18:28.912 --> 18:32.422
It could be connections, it could be commercial organizations, it could

18:32.455 --> 18:36.397
be just multiuser access for well

18:36.430 --> 18:39.437
beyond gaming is what this man imagined.

18:40.462 --> 18:44.517
Okay? And one of the things that's interesting about the Metaverse

18:44.577 --> 18:48.642
is rules. Basically there are no rules.

18:48.702 --> 18:51.802
Physics does not apply. You can

18:51.820 --> 18:55.317
make up your own rules. And so because eventually

18:55.377 --> 18:57.597
we're going to have people that interact,

18:57.717 --> 19:01.897
transact, own assets, build services,

19:02.005 --> 19:05.892
things. Companies, they create IP, they might want to advertise

19:06.027 --> 19:09.800
and they'll likely eventually commit crimes and may or may not need insurance.

19:10.762 --> 19:14.227
You can see how this probably requires some sort of

19:14.245 --> 19:17.767
legislature eventually. And those

19:17.815 --> 19:22.747
sorts of services and legislature will lead to an

19:22.780 --> 19:26.272
improved access point, but it can also be pretty

19:26.305 --> 19:29.462
dangerous before that point if you aren't paying attention.

19:30.112 --> 19:33.427
So we will see

19:33.520 --> 19:36.772
how that evolves. Right now there is not a whole lot around it.

19:36.805 --> 19:41.122
And the patent office is actually still figuring out

19:41.230 --> 19:43.400
what the intellectual property looks like,

19:43.762 --> 19:47.197
what legislation will look

19:47.230 --> 19:51.350
like for that, and also what litigation might look like for that.

19:53.362 --> 19:57.172
OK, so the difference here between virtual reality and

19:57.205 --> 20:01.475
augmented reality is

20:02.587 --> 20:06.067
a lot and a little all at once. Alright,

20:06.115 --> 20:09.852
so virtual reality is when you are accessing a head mounted display

20:09.882 --> 20:13.272
of some kind, where you are fully

20:13.317 --> 20:16.722
immersed, you are not seeing the real world through it. It's likely

20:16.767 --> 20:21.267
a pair of glasses or something that blocks out the real world versus

20:21.327 --> 20:24.747
augmented reality, where you usually can see through it's,

20:24.792 --> 20:29.937
usually a clear display or some sort of awareness

20:30.012 --> 20:33.262
of what's going on around you because you can view or

20:33.400 --> 20:36.817
sometimes just hear the real world, right? But usually

20:36.940 --> 20:40.167
it's more of a clear device

20:40.227 --> 20:43.100
where you can put content on it.

20:43.837 --> 20:47.307
Where this breaks apart is when you talk about virtual objects,

20:47.397 --> 20:51.725
because virtual objects, virtual content is shown in both

20:52.162 --> 20:56.022
and it's just shown a little bit differently. And usually it's

20:56.067 --> 20:59.872
generated differently too. So it'll be

20:59.905 --> 21:03.682
3D likely in both, but it could be two D and

21:03.760 --> 21:07.252
it's a little more difficult to create content that's going to

21:07.270 --> 21:10.732
be displayed and overlaid on real world content

21:10.810 --> 21:15.437
and still be viewable. So sometimes that is taken into consideration and changed

21:16.612 --> 21:19.637
versus when you access it on augmented reality.

21:20.737 --> 21:25.827
But when you actually interact

21:25.932 --> 21:29.632
in both of these, you interact with yourself

21:29.785 --> 21:33.177
and your content or you interact with several other users.

21:33.282 --> 21:36.817
And so this really created, I think,

21:36.940 --> 21:40.957
the basis for the Metaverse. And this is where it started.

21:41.035 --> 21:44.182
This is what you could do with a

21:44.185 --> 21:47.692
virtual space. I've worked in

21:47.815 --> 21:52.117
virtual reality and augmented reality patents for almost

21:52.165 --> 21:55.612
a decade. And basically when you

21:55.675 --> 21:59.272
look at this stuff and you claim this stuff, you really do talk

21:59.305 --> 22:05.337
about virtual objects, virtual content virtual

22:05.412 --> 22:09.247
world. And you use those terms, and you

22:09.280 --> 22:12.772
sometimes use those terms in your claims, too, so that

22:12.805 --> 22:16.012
you can make sure you can get around real world

22:16.075 --> 22:21.772
art, right? And one

22:21.805 --> 22:25.687
of the things to work around the

22:25.750 --> 22:29.142
actual infringement pieces,

22:29.202 --> 22:32.452
which is a user doing something as

22:32.470 --> 22:34.775
opposed to an avatar doing something,

22:35.287 --> 22:38.977
you actually write in what

22:38.995 --> 22:42.912
the other pieces around what you're doing are. So when I say other pieces,

22:42.987 --> 22:47.472
I say I mean, if you enhance imagery

22:47.517 --> 22:51.022
or optics or you modify imagery or optics or you

22:51.055 --> 22:54.997
optimize imagery of some kind, and that's part of what you're doing in order

22:55.030 --> 22:58.747
to display in virtual reality, you actually start

22:58.780 --> 23:02.667
to claim around those pieces. And so if you're doing something to enhance

23:02.727 --> 23:06.447
the imagery or the optics because it's in a virtual reality

23:06.642 --> 23:10.177
display or a virtual reality world. Even if

23:10.195 --> 23:13.462
it's software. Because the software is causing those

23:13.525 --> 23:17.142
effects. You tend to put them into the claim.

23:17.202 --> 23:21.022
And that will get you around the same sort of effect that you would

23:21.055 --> 23:24.962
do in just a regular display. A physical display

23:25.387 --> 23:28.407
that isn't meant for a head mounted display device.

23:28.572 --> 23:31.987
So it's interesting how that world has been

23:32.050 --> 23:35.000
claimed to get around real world content,

23:35.737 --> 23:39.097
right? For a long time,

23:39.205 --> 23:43.092
you could do anything you wanted to do in a virtual reality

23:43.227 --> 23:46.377
or an augmented reality claim as long as you claimed

23:46.407 --> 23:49.747
it for virtual world or as long as you claimed it for

23:49.780 --> 23:53.757
display in the end into a headmounted display device,

23:53.922 --> 23:56.832
right? Because you can imagine there are a lot of software,

23:56.922 --> 24:00.500
methods and systems that display to a physical screen,

24:01.012 --> 24:04.462
but if they've only covered the physical screen

24:04.525 --> 24:07.677
in the application, they haven't covered the head mounted display

24:07.707 --> 24:11.662
device. You can get around that, and it can be novel for

24:11.800 --> 24:15.672
really strange reasons where it doesn't seem

24:15.717 --> 24:19.972
very obvious, but the fact that you're displaying it in a virtual situation is

24:20.005 --> 24:23.677
just different. All right, so let's talk about what

24:23.695 --> 24:27.042
method claims might look like in virtual patent infringement

24:27.102 --> 24:29.825
in the metaverse. So, remember,

24:30.712 --> 24:34.567
the metaverse can be any type of virtual reality or some

24:34.615 --> 24:38.152
type of virtual reality, right? And virtual reality tends to

24:38.170 --> 24:41.482
be the most immersive as opposed to augmented, where you

24:41.485 --> 24:44.675
can peek out into the real world while you're consuming content.

24:46.762 --> 24:50.592
So method claims are really readily applied to a virtual

24:50.652 --> 24:54.050
world. Method claims recite steps in a process,

24:54.412 --> 24:57.792
and you likely recall that all method steps

24:57.852 --> 25:01.712
in a process must be performed in order to prove infringement.

25:02.212 --> 25:05.817
And so basically, that means any entity

25:05.952 --> 25:09.652
must perform all the steps of your method claim to

25:09.670 --> 25:11.225
infringe that claim, right?

25:13.387 --> 25:17.152
So if that machine is a virtual machine operating on or within the

25:17.170 --> 25:20.917
metaverse, it could arguably be held to the same standard,

25:21.040 --> 25:24.937
like somebody was in the metaverse, and they did

25:25.000 --> 25:27.437
every aspect of my method claim.

25:29.587 --> 25:32.752
Okay, so let's look at an example. This is

25:32.770 --> 25:36.142
a computer implemented method comprising loading video

25:36.190 --> 25:40.337
game object code into memory, receiving player preferences,

25:41.062 --> 25:44.997
executing the video game object code, and then displaying output

25:45.042 --> 25:48.852
from the execution of the video game object code according to the received

25:48.882 --> 25:52.297
player preferences. So this

25:52.330 --> 25:55.567
is probably obvious, but let's for argument's sake say,

25:55.615 --> 25:59.542
okay, these are our steps. And if you look at those

25:59.590 --> 26:03.202
steps, you really do see that any virtual machine executing in

26:03.220 --> 26:06.667
the metaverse that would perform these steps would

26:06.715 --> 26:10.107
argue infringe, right? That's an incredibly broad claim.

26:10.122 --> 26:13.012
Is that actually an issue claim? It is not.

26:13.075 --> 26:16.132
No, it is not. This is just an example. Like I

26:16.135 --> 26:18.200
said, it's very, very, very obvious.

26:19.387 --> 26:23.002
But you could see how you could add a

26:23.020 --> 26:28.047
couple more steps to make it less obvious and more directly

26:28.092 --> 26:31.672
related to an exact video game and you could probably get

26:31.780 --> 26:34.297
a claim allowed here,

26:34.330 --> 26:37.700
right? Kristen you know what I think is interesting about

26:38.887 --> 26:43.092
a lot of different sort of computer software claims

26:43.152 --> 26:46.927
these days. I guess fall in this category. But especially I think

26:47.020 --> 26:50.422
in this sort of metaverse area is divided or

26:50.455 --> 26:54.607
split infringement. Where if you have

26:54.685 --> 26:58.702
an Amazon web services hosting something for you and

26:58.720 --> 27:02.722
then you're displaying something to a user's screen or

27:02.755 --> 27:06.417
headmounted display. Like you said. One entity

27:06.477 --> 27:10.017
needs to perform all the method steps. So I think divided infringements

27:10.077 --> 27:14.032
particularly troublesome sometimes

27:14.185 --> 27:16.507
in this area, right? Yes,

27:16.660 --> 27:20.707
especially if you are accessing services and

27:20.860 --> 27:24.097
software from multiple components and doing that

27:24.130 --> 27:27.500
together to create some sort of other service, right?

27:28.012 --> 27:31.867
You can imagine like your Google or your Apple who has

27:31.915 --> 27:36.277
software services and software access to

27:36.370 --> 27:39.577
certain, let's say, music, and then you

27:39.595 --> 27:44.992
have another player who maybe provides access to video,

27:45.190 --> 27:48.082
you know, so like Ted Talks or something like that.

27:48.235 --> 27:52.837
And you combine that service and you begin to see different

27:52.900 --> 27:57.575
people are infringing different ways, you're combining it and

27:57.937 --> 28:01.957
you also are forcing users to infringe on these things, which is

28:02.035 --> 28:05.150
not what you the user is not who you want to go after.

28:05.662 --> 28:09.847
Right? You want to go after the companies who

28:09.880 --> 28:13.242
are infringing your patent claim.

28:13.377 --> 28:17.172
I think that's where probably from a draft person's

28:17.217 --> 28:21.212
art perspective, really thinking through from a software perspective,

28:22.162 --> 28:25.497
what are all those combinations? And then how do you draft

28:25.542 --> 28:28.357
a claim that maybe, you know,

28:28.510 --> 28:32.377
like, I was seeing the wearables context and wearables, which is

28:32.395 --> 28:36.717
not virtual reality or augmented reality necessarily, but wearable

28:36.777 --> 28:40.027
devices a times they have sensors. But if you're thinking about

28:40.045 --> 28:43.572
from a software perspective, you know, a lot of the processing

28:43.617 --> 28:46.767
actually might be done on some other device that's not the wearable.

28:46.827 --> 28:50.647
So then, you know, it's not really your claim isn't really

28:50.755 --> 28:54.275
sensors measuring something, it's receiving sensor data.

28:55.087 --> 28:57.875
You know what I mean? I think it's like a little bit of that like

28:58.537 --> 28:59.300
well,

29:01.987 --> 29:05.292
for drafting software claims, it never is a mind trick

29:05.352 --> 29:08.392
because if you're drafting a software claim, you always,

29:08.515 --> 29:12.742
always, always need to know, and I cannot emphasize this enough

29:12.940 --> 29:16.542
fit in one spot. When you claim one spot,

29:16.602 --> 29:19.702
if you are going to claim it from the wearable device, you fit at the

29:19.720 --> 29:23.837
wearable and everything is either received or performed by the wearable.

29:24.337 --> 29:27.732
It's never ever performed

29:27.747 --> 29:30.062
by something else in the same claim,

29:30.412 --> 29:33.012
right? I like that. Sit in one spot.

29:33.162 --> 29:37.297
Yes, always sit in one spot because if you

29:37.330 --> 29:41.427
begin to claim half the server and half the wearable

29:41.607 --> 29:46.272
you completely pardon

29:46.317 --> 29:49.837
the phrase screw yourself or having

29:49.900 --> 29:53.502
a useful claim down the line because somebody else will infringe

29:53.532 --> 29:57.202
it by only doing half your claim and doing the other half that

29:57.220 --> 29:59.462
you said the server did by the wearable.

30:00.337 --> 30:03.042
And so you don't want to do that either. You don't want to cause divided

30:03.102 --> 30:07.147
infringement problems on your own side. And if you really think

30:07.180 --> 30:10.687
it's important that the server do something, write a whole nother sub

30:10.750 --> 30:14.422
claim, set another independent claim and some dependence from

30:14.455 --> 30:17.542
the server side, right? So way

30:17.590 --> 30:20.900
back in the day when software was basically

30:21.337 --> 30:24.787
server side or local side, you would write

30:24.925 --> 30:28.402
a server side claim, you would write a local side claim and then

30:28.420 --> 30:32.302
you'd maybe pick or choose which computer readable Medium claim was going to

30:32.320 --> 30:35.000
mimic either the server or the local side.

30:35.962 --> 30:39.457
And sometimes it was important, right? Sometimes you have different things that

30:39.460 --> 30:43.767
you want to give the user or trigger for display to the user

30:43.902 --> 30:47.107
from the server side, right. Or do the calculations on

30:47.110 --> 30:50.722
the server side. And that was very important because your local device has

30:50.755 --> 30:52.775
low memory, low battery, low whatever.

30:53.437 --> 30:57.397
So it's really an exercise in what makes

30:57.430 --> 31:01.037
the most sense to do this. And when I interview,

31:01.837 --> 31:05.347
I guess software inventors, I always

31:05.530 --> 31:09.187
ask could this be performed on the server side?

31:09.250 --> 31:12.907
And if so, how would it be different things

31:12.985 --> 31:16.267
like what has to

31:16.315 --> 31:19.612
change to allow your wearable device to actually do this piece,

31:19.675 --> 31:23.137
right? Or is there

31:23.200 --> 31:27.327
a situation where you are sharing processing

31:27.432 --> 31:31.492
and what does that look like? And in that situation you

31:31.540 --> 31:35.162
still do not want to write a claim with shared processing

31:35.737 --> 31:39.322
unless it is unbelievably obscure and like the only

31:39.355 --> 31:42.717
way to do something, nobody is ever going to infringe that claim

31:42.777 --> 31:46.312
which makes it a useless claim, right? You're talking about something

31:46.375 --> 31:49.477
from like a blockchain you kind of read my mind.

31:49.495 --> 31:53.547
I was thinking of hold like distributed ledger perspective

31:53.742 --> 31:56.977
or from imagine a virtual world, you have

31:56.995 --> 32:00.502
some kind of networking mesh network, I don't know, kind of

32:00.520 --> 32:04.197
thing going on where yes, you don't want to claim

32:04.242 --> 32:09.387
it from perspective of I have these plurality of memories

32:09.462 --> 32:13.627
and plurality of processors. You still want to be in that what

32:13.645 --> 32:17.450
is one computer doing, what is one processor doing?

32:18.412 --> 32:22.175
Obviously it's going to be receiving data. It's really interesting.

32:22.537 --> 32:25.992
So like the blockchain example, if you are literally

32:26.052 --> 32:29.452
the ledger and you're dealing with the ledger, you have to run that on a

32:29.470 --> 32:32.997
server or some certain. Device that's

32:33.042 --> 32:37.942
always receiving and checking and sending or

32:37.990 --> 32:42.012
approving, right. You're never going to see a request

32:42.162 --> 32:45.192
at the server from the generating a request,

32:45.252 --> 32:48.502
right. The server would never generate that. It's always the users and the

32:48.520 --> 32:52.252
local machines generating some sort of request to access the

32:52.270 --> 32:55.522
blockchain. So just

32:55.630 --> 32:59.092
thinking about it in sitting in one

32:59.140 --> 33:02.542
spot and understanding that you just can't do that

33:02.590 --> 33:06.127
claim stuff that you want to put in there because it is important sometimes to

33:06.145 --> 33:09.577
the invention and you just want to wedge it in there and

33:09.595 --> 33:12.952
you just cannot it just doesn't make sense. It makes it a

33:12.970 --> 33:16.077
useless claim and it causes divided infringement that you don't

33:16.107 --> 33:19.552
want to deal with. And it really is a

33:19.570 --> 33:23.377
useless claim. If you have to get two people working together to

33:23.395 --> 33:27.202
infringe that, it's much more rare that

33:27.220 --> 33:30.697
that will happen. And it's just better

33:30.805 --> 33:33.875
to claim it from the one place.

33:34.237 --> 33:37.672
Don't you have to from a defined printer perspective. Isn't it like there

33:37.705 --> 33:41.047
has to be some level of proof or

33:41.155 --> 33:46.037
discovery that kind of shows that one party

33:48.412 --> 33:52.182
in an enabling capacity for the second party.

33:52.347 --> 33:56.537
Right. That induced.

33:58.987 --> 34:03.057
Just divided you can simply have two parties who infringe

34:03.072 --> 34:06.967
your claim because they each do half and they cause maybe

34:07.015 --> 34:09.967
a user to infringe it because they each do half. Right.

34:10.090 --> 34:13.282
Doesn't have to be any collaboration. Not collaboration, but you know

34:13.285 --> 34:17.187
what I mean, like instructions or teaching

34:17.262 --> 34:20.437
of the second party. Because I think of like,

34:20.500 --> 34:24.382
in the simplest case, you think of a medical device from a

34:24.385 --> 34:27.577
use perspective, right. You sell a medical device and then you have a set

34:27.595 --> 34:30.912
of instructions where you say do X, Y and Z with this medical device.

34:30.987 --> 34:34.672
And so that company is inducing a user to infringe because

34:34.705 --> 34:38.047
they sold the device and then they said do X, Y and Z with this.

34:38.230 --> 34:42.582
Then you're saying from an indirect it doesn't have to be that teaching.

34:42.672 --> 34:45.702
It's just collectively two parties. And now those two parties

34:45.732 --> 34:49.792
would be collectively brought to suit whether

34:49.840 --> 34:53.422
they were aware of it or not. Collectively participated in this. Yeah.

34:53.455 --> 34:56.697
And you have to prove it. And part of that it's

34:56.742 --> 35:00.157
very rarely that they aren't in cahoots because of the end

35:00.235 --> 35:03.397
product, right, of what they usually offer or the

35:03.430 --> 35:04.325
end service.

35:07.162 --> 35:10.467
But you can see how writing claims like this method

35:10.527 --> 35:14.312
claim and performing it in the metaverse

35:15.037 --> 35:19.152
could infringe

35:19.332 --> 35:22.447
in the real world, right? This could be something where this is

35:22.480 --> 35:26.127
software just because it's running off of a virtual

35:26.157 --> 35:29.737
machine or running in a virtual access point,

35:29.875 --> 35:34.037
right. It still could be infringed.

35:36.037 --> 35:39.067
So the interesting case that I actually like, though,

35:39.115 --> 35:42.717
is the apparatus. So apparatus claims

35:42.777 --> 35:46.372
infringement is actually shown by proving that a party used, made,

35:46.480 --> 35:50.122
offered for sale or sold or imported a product that

35:50.155 --> 35:54.067
includes all the claimed pieces of the apparatus or the product.

35:54.265 --> 35:58.152
And so if that machine in our metabolic situation, if that machine

35:58.182 --> 36:01.477
is a virtual version of the apparatus coded up and dropped into the

36:01.495 --> 36:05.247
metaverse and previously claimed by another system or apparatus.

36:05.292 --> 36:08.917
Claim creation or sale of that apparatus could

36:08.965 --> 36:12.502
arguably infringe. Okay, and so I

36:12.520 --> 36:15.437
have an interesting claim,

36:16.462 --> 36:20.077
basically a turnstile device. And this is a

36:20.095 --> 36:23.382
device for counting users entering a predefined location.

36:23.547 --> 36:27.357
The device comprising a support leg with a bottom portion fixed

36:27.372 --> 36:31.152
to a ground plane and assembly affixed to a top portion

36:31.182 --> 36:34.567
of the support leg and configured to rotate around the support leg.

36:34.690 --> 36:38.547
So you begin to see the turnstile, right. A gate affixed

36:38.592 --> 36:42.022
to the assembly such that the gate rotates with the assembly and

36:42.055 --> 36:45.737
accounting mechanism that increments account when the gate is rotated.

36:46.762 --> 36:50.247
So any virtual machine executing a virtual version

36:50.292 --> 36:53.547
of this assembly could arguably infringe.

36:53.592 --> 36:57.127
Right. So here I have

36:57.145 --> 37:00.997
an example. This is actually a turnstile that is still in

37:01.030 --> 37:06.172
patent. It is a Russian patent and

37:06.280 --> 37:09.757
the claim itself language does not match the figure. But I wanted to give you

37:09.760 --> 37:13.872
a figure to assess and you can see how this is a turnstile.

37:13.917 --> 37:18.027
This could be let's say you are let's

37:18.057 --> 37:22.297
say you are in the virtual world and you are going to enter a

37:22.330 --> 37:25.432
virtual concert, right? So enter a virtual stadium to watch a

37:25.435 --> 37:29.412
virtual concert. So the most common understanding of the term

37:29.562 --> 37:33.072
apparatus, this virtual counter device really isn't

37:33.117 --> 37:36.352
a device at all. It really is software coded out

37:36.370 --> 37:39.962
to be imagery and the virtual counter

37:40.837 --> 37:44.225
itself basically is a computer simulation. Right.

37:45.637 --> 37:49.512
So any thoughts on how and why you would think this would infringe

37:49.587 --> 37:54.372
putting dropping something like this as software in the virtual

37:54.417 --> 37:58.025
vendor in the metaverse? What I'm trying to think of is

37:59.812 --> 38:02.892
do you think it would be a doctrine of equivalence,

38:02.952 --> 38:07.462
kind of infringement versus just

38:07.600 --> 38:12.807
because devices have typically

38:12.972 --> 38:16.552
have from a processor perspective, obviously that's a little bit different. But from an

38:16.570 --> 38:20.217
actual device perspective, there are physical elements

38:20.277 --> 38:25.132
of a claim that a

38:25.285 --> 38:29.757
virtual version wouldn't have because it's

38:29.772 --> 38:33.727
not constrained by the virtual reality. Like, I think of my

38:33.745 --> 38:37.347
son's into minecraft and they talk about how you can build anything in minecraft,

38:37.392 --> 38:41.167
but you're not constrained by gravity. Right? So your

38:41.215 --> 38:44.962
turn style doesn't need certain things

38:45.025 --> 38:48.275
because it's not constrained by gravity. And those

38:49.087 --> 38:51.125
physics of the real world.

38:52.987 --> 38:56.092
Yeah, I mean, I think it's really interesting mental exercise because I think it's like

38:56.140 --> 38:58.927
such a case by case basis. But I could see in some cases it could

38:58.945 --> 39:01.432
be. But really, like you said, it kind of depends on how they spin it

39:01.435 --> 39:04.872
up in the virtual world. Like does it because it's users

39:04.917 --> 39:08.422
in a virtual space, do these virtual things look like

39:08.455 --> 39:11.692
we would expect them to look in the real world or

39:11.815 --> 39:15.697
because it's the virtual world? Do people have more creative liberty and

39:15.730 --> 39:19.550
do they make them look completely crazy and different

39:19.987 --> 39:23.212
because they can again, you're not being constrained by

39:23.275 --> 39:27.187
physics right now you hit on both, you hit on both

39:27.250 --> 39:30.897
kind of thought processes there. What about the hardware components

39:30.942 --> 39:34.302
and is there a doctrine of equivalents? And we'll

39:34.332 --> 39:37.447
talk about both of those. But really I would

39:37.480 --> 39:41.407
say that this example, this apparatus example is kind

39:41.410 --> 39:45.117
of a literal look at device components in real space versus

39:45.177 --> 39:47.600
device components in a virtual space.

39:48.787 --> 39:53.067
And going back to the method claim, I would say it's

39:53.127 --> 39:56.797
basically a claim for displaying output and that would

39:56.830 --> 40:00.222
infringe a real world implementation because clearly software

40:00.267 --> 40:03.957
performed on a processor in the real world for viewing

40:03.972 --> 40:07.147
in a real world TV or screen right. And or

40:07.180 --> 40:10.207
for viewing in a virtual world on a different type of screen,

40:10.360 --> 40:14.337
they really would be the same sort of display

40:14.412 --> 40:18.200
output aspects. Right. So maybe

40:18.637 --> 40:21.892
that method claim would be something that is very

40:21.940 --> 40:26.167
clear. But this apparatus claim I think is a little bit more dicey where

40:26.290 --> 40:29.827
you're actually mimicking real world moving parts for the

40:29.845 --> 40:33.507
purposes of like user comfort or user viewing

40:33.597 --> 40:37.437
as they enter and recognition of a turnstile

40:37.512 --> 40:41.452
right. At the

40:41.470 --> 40:44.300
same time performing the counting steps right. In both.

40:45.187 --> 40:48.952
Yeah, it is really interesting. I was thinking similarly to what Ashley was

40:48.970 --> 40:52.207
saying and then my mind went to

40:52.360 --> 40:56.077
the spec. So like this claim in

40:56.095 --> 40:59.697
the spec, if they said the device could be physical or virtual,

40:59.817 --> 41:03.777
OK, a lot stronger of a case that they intended

41:03.807 --> 41:07.062
it, they anticipated that it's part of their invention,

41:07.137 --> 41:10.272
quote, unquote. But if this patent never mentions

41:10.317 --> 41:13.827
anything virtual, I think it's a I personally

41:13.857 --> 41:17.362
feel like it's a hard case to make that you're infringing because it's like,

41:17.500 --> 41:21.427
you know, the inventors never anticipated what

41:21.445 --> 41:24.547
you're doing. So that seems a little bit of

41:24.580 --> 41:28.207
a stretch. On the other hand, if somebody tried to

41:28.210 --> 41:31.297
get this let's say this was an issued claim and someone tried to get this

41:31.330 --> 41:35.047
exact issued claim, this exact claim issued by

41:35.080 --> 41:39.192
adding the word virtual everywhere. So a virtual device recounting virtual

41:39.252 --> 41:42.847
users measuring a predefined virtual location and a

41:42.880 --> 41:46.557
virtual support leg fixed to a virtual ground plane.

41:46.722 --> 41:51.097
I wonder if that would be obvious and if this art would actually say

41:51.280 --> 41:54.697
hey, look, no, someone's already invented that. Now you're just doing what

41:54.730 --> 41:58.925
someone's already invented in a computer, which I think there's good case law around

41:59.887 --> 42:04.927
not patentable. So I feel like yeah,

42:05.095 --> 42:09.125
anyway, that's a really good point. I think you're right.

42:11.812 --> 42:14.647
From practitioners, you always try to crystal ball it,

42:14.680 --> 42:18.577
right? This is what they invented today. But how is it

42:18.595 --> 42:22.597
going to that makes a fantastic point. Do you as

42:22.630 --> 42:25.777
a practitioner start building in

42:25.795 --> 42:28.937
like a boilerplate virtual paragraph?

42:30.562 --> 42:33.922
And by the way, all of these things can be

42:33.955 --> 42:37.827
done virtually with or without the constraints

42:37.857 --> 42:41.107
of physics that these things could be done

42:41.185 --> 42:44.827
in a software based implementation. It makes you wonder. Right. Because this

42:44.845 --> 42:48.397
is clearly where some of the spaces are heading to

42:48.430 --> 42:51.507
do I love the prior art piece of it though too, because I think you're

42:51.522 --> 42:55.387
right. I think if you're going to claim this in a software based

42:55.450 --> 42:59.197
approach, you have to start going into how

42:59.380 --> 43:03.307
you accomplish it. Because again, I think instead of

43:03.385 --> 43:07.025
just what it does right, because you are entering that software world.

43:07.462 --> 43:10.672
So I think the use cases are different enough that you wouldn't have to build

43:10.705 --> 43:14.157
in that boilerplate into your standard devices. And I'm

43:14.172 --> 43:17.457
feeling compelled now, but it's

43:17.472 --> 43:21.142
a good point. If you are doing a piece of software only,

43:21.265 --> 43:23.762
right? If it's really only software,

43:24.562 --> 43:28.567
what makes it virtual and what makes it running in bits and bytes on

43:28.615 --> 43:32.122
a hardware processor, there's really not much

43:32.155 --> 43:35.532
difference, right? When you start saying virtual,

43:35.622 --> 43:39.522
it's because it's either software

43:39.567 --> 43:44.502
displayed content or it's running on a virtual machine. There's a few different definitions

43:44.532 --> 43:47.617
for virtual but software itself,

43:47.740 --> 43:51.202
because we don't see it working, is kind of a

43:51.220 --> 43:52.625
virtual thing, right?

43:54.487 --> 43:57.852
So I think doctrine of equivalence is what's

43:57.882 --> 44:01.152
going to come in in these situations and let's go through some cases

44:01.182 --> 44:04.747
on that because you know, it's always

44:04.780 --> 44:08.887
a good reminder, especially when you're drafting, to wonder

44:08.950 --> 44:12.292
how else could this be done? What would be equivalent to this? Not only because

44:12.340 --> 44:15.997
you need the examples to draft, but you also you want to make sure

44:16.030 --> 44:19.777
you're covering the right things, right? And not forgetting something.

44:19.945 --> 44:23.617
So a couple of tidbits for some case law

44:23.665 --> 44:27.202
under doctrine of equivalents, a product or process

44:27.295 --> 44:30.457
that does not literally infringe upon the expressed terms of

44:30.460 --> 44:34.707
a patent claim may nonetheless be found to infringe if there is equivalence

44:34.797 --> 44:38.002
between the elements of the accused product or process and the

44:38.020 --> 44:42.327
claimed elements of the patented invention. Okay? That's just basics

44:42.507 --> 44:45.652
where the whole substance of the invention may be copied in

44:45.670 --> 44:48.727
a different form. So right, going from virtual to

44:48.745 --> 44:52.272
real world, that could be a different form. It is the duty of the courts

44:52.317 --> 44:56.452
and juries to look through the form for the substance of the invention for

44:56.470 --> 45:00.072
that which entitled the inventor to his patent and which the patent

45:00.117 --> 45:03.157
was designed to secure. Where that is found,

45:03.235 --> 45:06.897
there is an infringement and it is not a defense that it is embodied

45:06.942 --> 45:10.402
in a form not described and in terms claimed by

45:10.420 --> 45:14.122
the patentee. So here it looks like we do

45:14.155 --> 45:17.975
have a hook to cover real world content

45:18.937 --> 45:22.302
or virtual world content and in vice versa

45:22.332 --> 45:25.852
worlds, right? But it's going to go all

45:25.870 --> 45:29.647
the way to the courts and juries. So you're still in

45:29.680 --> 45:32.225
a situation where it's going to be decided later.

45:32.737 --> 45:37.227
So you still could have a problem if they decide it's

45:37.257 --> 45:40.432
the same form or substance. It's just software, right?

45:40.510 --> 45:44.217
We have lots and lots of people out there saying, well, it's all just software

45:44.352 --> 45:48.052
and software is this or software is that. So if you get a

45:48.070 --> 45:51.717
judge or a set of jurors who actually don't

45:51.777 --> 45:54.997
either technically understand the differences in

45:55.030 --> 45:58.857
what's being pulled apart, which often in patent claims

45:59.022 --> 46:01.872
even practitioners struggle with some of the understanding,

46:01.917 --> 46:05.737
right? So if you get a layman or a judge who doesn't typically do

46:05.800 --> 46:09.127
patents and patent claim language, you could still be in

46:09.145 --> 46:12.457
trouble. Okay, so some more case law

46:12.535 --> 46:16.132
infringement by equivalents generally requires a showing that the difference

46:16.210 --> 46:20.412
between the claimed invention and the accused product is insubstantial.

46:20.487 --> 46:24.022
Okay? So you're trying to go at it from a different way and say how

46:24.055 --> 46:28.012
are these less different? How is this an insubstantial difference?

46:28.150 --> 46:32.032
So one way of proving in substantial difference is the functionway result

46:32.110 --> 46:35.967
test, which includes showing on a limitation by limitation basis

46:36.102 --> 46:40.072
that the accused products performed substantially the same function in

46:40.105 --> 46:44.322
substantially the same way with substantially the same result as each claim

46:44.367 --> 46:47.937
limitation of the patented product. So back to the turnstyle.

46:48.012 --> 46:50.677
Go, go ahead, ahead. I was going to say yeah, I guess maybe I should

46:50.695 --> 46:54.132
let you finish. I mean just thinking the way, if it's

46:54.147 --> 46:58.122
not with a court view substantially

46:58.167 --> 47:01.767
the same way, would they be that to be the same? If it were software

47:01.827 --> 47:05.377
implemented versus physical reality, is that substantially the

47:05.395 --> 47:09.222
same way or is that different enough? Depends on the results,

47:09.267 --> 47:13.550
right? If the results are the count or spitting something,

47:14.287 --> 47:17.452
then they're substantially the same way. Even the

47:17.470 --> 47:19.700
one software wants real world. Right.

47:20.812 --> 47:24.427
So I wonder if they would look at output or

47:24.445 --> 47:27.682
if they would look at each I mean it's saying it

47:27.685 --> 47:30.847
will look at each limitation, but if each limitation has a certain

47:30.880 --> 47:34.327
output and each of those outputs is different in the physical case as well as

47:34.345 --> 47:39.192
the virtual case, they're going to have a hard time delineating

47:39.252 --> 47:43.402
that. Right? It's really interesting. It really is. And I

47:43.420 --> 47:47.332
think you might end up in the case where I

47:47.335 --> 47:50.337
think some of the thought experiments that I've been kind of thinking about and we've

47:50.837 --> 47:54.772
been talking about if someone did get a claim that was

47:54.805 --> 47:58.302
virtual to something in the real world that everybody knows

47:58.332 --> 48:02.022
it's something obvious, but somehow it got to the patent office in litigation,

48:02.067 --> 48:05.877
it might be an invalidity defense essentially.

48:06.057 --> 48:08.857
So okay, sure, we're doing what your claim said,

48:08.935 --> 48:12.277
virtually non virtually, but you never should have got

48:12.295 --> 48:15.697
that claim anyway because it's obvious

48:15.805 --> 48:19.582
over real world technologies. So I think, you know, I think some of

48:19.585 --> 48:23.077
the examples, at least in my mind that I'm saying how would this be

48:23.095 --> 48:28.027
equivalent to that? It seems like you can't in

48:28.045 --> 48:30.425
some claims with a turnstile claim. For example,

48:31.087 --> 48:34.542
if somebody tried to patent that turnstile virtually,

48:34.677 --> 48:37.812
they wouldn't be able to get it because it's something that's already well known.

48:37.887 --> 48:41.525
It would be obvious. So you're not going to be in this

48:42.937 --> 48:46.897
case of litigation. Right, but that's more the opposite way, right, that's somebody trying

48:46.930 --> 48:50.077
to get a patent for a virtual one versus a

48:50.095 --> 48:53.502
physical one. I think the opposite though. Could somebody with a patent

48:53.532 --> 48:57.342
for the physical one, say, infringement of a virtual

48:57.402 --> 48:59.150
one, right?

49:01.387 --> 49:04.567
I think your point is well taken. I think it's perfect

49:04.615 --> 49:08.097
from like somebody going online trying to do a virtual

49:08.142 --> 49:11.722
one without something more probably couldn't given the prior art

49:11.755 --> 49:15.232
that exists for the physical devices. But does a person that's claimed to

49:15.235 --> 49:18.817
the physical device and gotten a patent on it, can they stop somebody

49:18.865 --> 49:21.800
from doing it virtually? Right?

49:23.812 --> 49:26.752
Yeah. And that's why it was a real simple claim, right. We don't want to

49:26.770 --> 49:30.277
add in all the bells and whistles that would make it non obvious because we

49:30.295 --> 49:33.050
do want to look at what if. Right.

49:34.237 --> 49:37.822
And I really do think it will come down to assessing function and

49:37.855 --> 49:41.212
result. And when they appear to be the same,

49:41.275 --> 49:44.752
I think you won't know until you

49:44.770 --> 49:48.147
bring it all the way to the courts what infringes or what doesn't,

49:48.192 --> 49:51.367
or an examiner in some situations, right.

49:51.565 --> 49:55.250
Or an appeal board where they will say, well, this is obvious.

49:57.262 --> 50:01.775
Our question for the group given think about

50:03.337 --> 50:07.092
how technology has evolved over time. Some of the more basic physical

50:07.152 --> 50:10.957
devices that we know of are well off patent, right. Because they

50:10.960 --> 50:13.475
were invented more than 20 years ago.

50:15.112 --> 50:18.402
Obviously, the virtual world can move a lot faster, right. Software moves

50:18.432 --> 50:21.697
way faster than, you know, just think of, like, I think of my lifetime and

50:21.730 --> 50:25.027
how software has changed, right. But still there's going to

50:25.045 --> 50:28.147
be a little bit of this leg of, you know,

50:28.330 --> 50:32.022
more simple software versus more complex that's able to mimic

50:32.067 --> 50:35.077
more simple versus more complex devices or real world things.

50:35.245 --> 50:38.750
So given that leg time,

50:41.212 --> 50:46.537
will there even be a period of time where there will be things

50:46.600 --> 50:50.862
on patents that software will be mimicking

50:51.012 --> 50:54.650
at the same time? You know what I mean?

50:55.312 --> 50:58.777
Obviously, like, if somebody's doing like, complex robotics in

50:58.795 --> 51:00.962
the real world and they're making them virtually,

51:02.137 --> 51:06.512
that's still happening, but old mousetrap off patent,

51:06.862 --> 51:09.362
virtual world, mouse trap,

51:09.787 --> 51:13.402
you know what I mean? Well, I mean, I think there

51:13.420 --> 51:17.142
will because if you think I have one example that made me laugh

51:17.202 --> 51:20.392
years ago. It was a virtual reality video

51:20.440 --> 51:24.132
game where you were basically running a cooking stand. And so you're

51:24.147 --> 51:28.167
grilling up meat and sandwiches and packing everything up and virtually serving

51:28.227 --> 51:31.702
people. Right? And in that virtual game, you had this

51:31.795 --> 51:35.227
very realistic looking grill with all the components and pieces of

51:35.245 --> 51:38.572
parts. In the game, they were

51:38.605 --> 51:41.857
grilling food. Right? In the game, you had a dial that had

51:41.860 --> 51:44.075
to be turned on to get everything going.

51:45.187 --> 51:49.072
So I think that you would overlap depending on

51:49.105 --> 51:53.542
what you're creating. You think George Foreman sued right

51:53.740 --> 51:57.687
here? I mean, it was a laugh

51:57.762 --> 52:00.747
just to see the user interacting.

52:00.942 --> 52:04.372
Yeah, Kristen, I had exactly a very similar example just came to my mind,

52:04.405 --> 52:07.237
which was a flight simulator, you know what I mean?

52:07.300 --> 52:11.312
Something where you could have very complicated

52:12.262 --> 52:15.425
mechanical simulations I guess,

52:16.162 --> 52:19.197
of real aircraft parts,

52:19.392 --> 52:21.725
for instance? I don't know.

52:23.212 --> 52:26.532
That's a really tough question. I think it very much comes down to the claims

52:26.547 --> 52:29.842
and the spec and what's anticipated or not. But then,

52:29.890 --> 52:33.712
you know what I thought of as a design pattern, let's say

52:33.850 --> 52:37.102
an airline has a design patent to

52:37.120 --> 52:40.552
a layout for the

52:40.570 --> 52:44.122
cockpit display or whatever, and then if somebody

52:44.230 --> 52:48.067
actually copied that into a video game, especially since it's a design,

52:48.190 --> 52:51.267
of course, right, that would be clearly infringing,

52:51.402 --> 52:55.325
right? But the mechanical parts of it or the methods or whatever,

52:55.912 --> 52:59.362
that's interesting. If the method of

52:59.425 --> 53:03.832
flying the airplane, let's say, was really unique and very

53:03.910 --> 53:07.447
inventive in a thought experiment and then the

53:07.480 --> 53:11.077
software people creating this flight simulator used that

53:11.170 --> 53:14.762
particular method mechanism,

53:15.112 --> 53:18.252
I think there would be a pretty good case for that. They're infringing,

53:18.357 --> 53:21.200
it's a real invention, they took it, they're using it,

53:21.562 --> 53:25.347
different application. But I mean, the core of the invention,

53:25.392 --> 53:28.775
the technology does seem to be leveraged, you know?

53:29.512 --> 53:33.202
No, I agree. And so one last bit on doctrine of

53:33.220 --> 53:36.702
equivalence and some case law. We basically have a claimed

53:36.732 --> 53:40.317
invention and an accused device that may perform substantially

53:40.377 --> 53:43.867
the same function and achieve the same result will not

53:43.915 --> 53:47.752
make the latter an infringement under the doctrine of equivalence where

53:47.770 --> 53:51.772
the accused device performs the function and achieves the results in

53:51.805 --> 53:55.177
a substantially different way. So what we want to

53:55.195 --> 53:59.352
look at there, the turnstile, the way you're

53:59.382 --> 54:02.992
achieving this result is it's a piece of

54:03.040 --> 54:06.517
software creating the count in the real

54:06.565 --> 54:10.747
world, it's an actual mechanism moving and

54:10.780 --> 54:14.437
it's probably a mechanical counter, right?

54:14.500 --> 54:18.350
And it likely isn't running software, but it could,

54:19.162 --> 54:22.972
right? So you could split like an old school turnstile device from

54:23.005 --> 54:26.227
a new school turnstile device and I think you could

54:26.245 --> 54:29.677
say the old one wouldn't likely infringe because you

54:29.695 --> 54:33.567
get this function and the result in a substantially

54:33.627 --> 54:38.087
different way than you do with the virtual content and the virtual turnstile.

54:38.662 --> 54:41.947
But the new one maybe runs some software and maybe you have more

54:41.980 --> 54:45.807
overlaps and because they look at it on a limitation by limitation

54:45.897 --> 54:50.082
basis, you might have a few pieces that actually infringe

54:50.247 --> 54:53.450
right now they may find that you don't have all

54:53.887 --> 54:57.067
in that case in a method claim you have to have,

54:57.115 --> 55:00.972
all right, it has to perform all. But in an apparatus

55:01.017 --> 55:06.112
claim, it's not necessarily all right.

55:06.175 --> 55:09.882
And it's not kind of a performance thing, it's just pieces and parts.

55:10.047 --> 55:12.587
And you don't always claim,

55:14.212 --> 55:18.067
even if you're claiming a software turn style, you're not

55:18.115 --> 55:21.657
necessarily calling it visual

55:21.747 --> 55:25.897
content or virtual content. Always it's a

55:25.930 --> 55:29.272
virtual turnstile. But then you

55:29.305 --> 55:33.697
start to look at virtual turnstyle versus physical turnstyle and

55:33.730 --> 55:36.187
then you go back to this other argument and you go how about the function

55:36.250 --> 55:39.202
and the result, right? And it's the same.

55:39.370 --> 55:43.077
So I think it's going to be dicey and I think it's

55:43.107 --> 55:47.077
going to turn on whether the factoring of equivalence is actually

55:47.245 --> 55:50.827
usable from a lawmaker's view in

55:50.845 --> 55:51.950
the virtual space.

55:53.962 --> 55:57.172
I feel like the design patent was a really interesting piece

55:57.205 --> 56:00.622
because I think it would be interesting to see if there's not that the

56:00.730 --> 56:05.122
design patents haven't been powerful, but even more so now

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for things you wouldn't have thought of to get a design patent for. Do you

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now get a design patent form more from just protecting

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against virtual adaptations of it?

56:17.587 --> 56:21.212
Yeah, it's interesting, but remember, with design patents

56:24.187 --> 56:27.642
it may be a situation where you're looking at figures

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whether it's virtual content or real world content, you're still looking

56:31.030 --> 56:33.875
at aspects of that design that match.

56:35.212 --> 56:39.537
And so it's a little easier, I think, to make those determinations

56:39.612 --> 56:43.400
and say, hey, this is exactly what this is and

56:43.762 --> 56:47.542
it's identical and it's displaying something.

56:47.665 --> 56:52.197
Right. So it's displayed or it's viewable because it's ornamental

56:52.242 --> 56:55.852
and viewable. Right. It's not functional. I think those

56:55.870 --> 56:59.652
are going to be easier to prove that, hey, you do infringe

56:59.682 --> 57:01.550
it because look, it looks the same,

57:02.662 --> 57:06.427
right? Yeah. Getting deep into the weeds of

57:06.595 --> 57:11.225
design patents, all the dotted lines and the environment could

57:11.587 --> 57:15.162
come into play depending on exactly what you've

57:15.237 --> 57:18.927
designed, what you're claiming in your design versus like what's surrounding

57:18.957 --> 57:21.727
it may or may not exist in the virtual space.

57:21.820 --> 57:23.375
But yeah,

57:25.087 --> 57:28.552
it does seem like an obvious place of

57:28.570 --> 57:32.202
overlap, I guess. But I think Kristen, that the stuff that you're

57:32.232 --> 57:35.557
talking about with achieving a result in a

57:35.560 --> 57:38.827
similar way is really interesting. And I agree with you that a

57:38.845 --> 57:43.562
lot of times software is going to be very different in the achieving

57:44.437 --> 57:47.557
of the process. But again, I think

57:47.560 --> 57:50.922
it comes down to the claims. I could imagine a method

57:50.967 --> 57:54.322
of flying an airplane right, which has

57:54.355 --> 57:58.392
nothing to do with the physical airplane, which you could absolutely infringe in a virtual

57:58.452 --> 58:02.152
space. Sure. Comes down to the claims and the spec and everything.

58:02.245 --> 58:05.572
Yeah, it's going to be interesting.

58:05.680 --> 58:09.742
So I think my next installment of the Metaverse, I'll cover something

58:09.790 --> 58:13.572
around solutions to patent protection in virtual

58:13.617 --> 58:16.977
worlds and kind of what you can do in virtual worlds

58:17.007 --> 58:21.052
to protect yourself a little more as you write claims for services

58:21.145 --> 58:25.222
or content in the Metaverse or services and content

58:25.330 --> 58:28.672
accessed in the Metaverse. I think it's going to be similar to

58:28.705 --> 58:32.122
what we do for virtual and augmented content now.

58:32.230 --> 58:35.782
But I think you'll have to abstract at one level

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more because it is not just your

58:40.030 --> 58:43.597
own software that you create and display. This is

58:43.630 --> 58:48.747
something where you are integrating services and you're

58:48.792 --> 58:52.507
dealing with multi user access and

58:52.660 --> 58:55.927
things that normally are just provided from a

58:55.945 --> 58:59.227
server or a bunch of servers. And in this situation you

58:59.245 --> 59:02.827
may be accessing multiple things in multiple ways that are meant to

59:02.845 --> 59:06.292
be merged and used together. And how do you

59:06.340 --> 59:08.992
create products like that and protect products like that?

59:09.040 --> 59:13.102
Right, well, what I'm thinking is we set up a virtual room

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and write virtual patents and get issued

59:17.067 --> 59:18.212
virtual patents.

59:20.887 --> 59:24.537
It's going to go full on virtual, but I wrote mine in the virtual

59:24.612 --> 59:27.650
world. Yeah, I don't know.

59:28.012 --> 59:31.572
They've been doing it for decades in the virtual and augmented spaces.

59:31.617 --> 59:34.402
And like I said, some of the tips and tricks there are to use the

59:34.420 --> 59:38.077
language of the world that you're in.

59:38.245 --> 59:42.067
But often you would receive video game

59:42.115 --> 59:45.907
art or old school like

59:45.985 --> 59:48.950
Microsoft productivity patents, art,

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things that solve these problems in a different way, but not for

59:53.335 --> 59:54.800
the virtual world.

59:56.512 --> 59:59.977
And often what you would have happen is you would get

1:00:00.070 --> 1:00:03.652
maybe you got two of those patents where a

1:00:03.670 --> 1:00:07.512
handful of your method steps are covered in these two older patents,

1:00:07.662 --> 1:00:11.367
and then the third piece just happens to be a virtual reality

1:00:11.502 --> 1:00:14.917
HMD device patent. And they just go on them together

1:00:15.040 --> 1:00:18.907
and they say, well, this is obvious because this and this and then here's a

1:00:18.910 --> 1:00:21.937
virtual reality patent that talks about maybe doing something

1:00:22.000 --> 1:00:26.472
productive, right, productivity wise. So examiners

1:00:26.517 --> 1:00:29.857
kind of take some shortcuts there and maybe that's okay,

1:00:29.935 --> 1:00:33.275
right, and say that this is obvious because

1:00:35.812 --> 1:00:39.087
one skilled in the art would be motivated to do this combination.

1:00:39.162 --> 1:00:43.250
And then you begin to have to argue really difficult things that

1:00:44.212 --> 1:00:47.900
tend to go to appeal. Let's put it that way.

1:00:48.787 --> 1:00:52.422
All right, any other comments or questions? That's fantastic.

1:00:52.467 --> 1:00:54.897
Really interesting. Good dialogue.

1:00:55.092 --> 1:00:58.912
Awesome. You all too. Thank you. Thanks for taking part

1:00:58.975 --> 1:01:02.467
and I will see everybody soon. Sounds great. Thanks,

1:01:02.515 --> 1:01:03.950
Christian. Thanks.

1:01:05.437 --> 1:01:08.427
Bye. All right, that's all for today, folks. Thanks for listening.

1:01:08.457 --> 1:01:12.147
And remember to check us out at Aurora Patents.com for more great podcasts,

1:01:12.192 --> 1:01:15.627
blogs, and videos covering all things patent strategy. And if you're

1:01:15.657 --> 1:01:18.352
an agent or attorney and would like to be part of the discussion, or an

1:01:18.370 --> 1:01:21.927
inventor with a topic you'd like to hear discussed, email us at podcast

1:01:21.957 --> 1:01:25.402
at aurora patents.com. Do remember that this podcast does not

1:01:25.420 --> 1:01:29.225
constitute legal advice. And until next time, keep calm and patent on

1:01:33.562 --> 1:01:34.050
subscribe our channel.

Intro
Patent Primer
Method and Apparatus Claims
Doctrine of Equivalents
Why the metaverse matters now
Pro Tips: IDS Black Hole at the PTO
Pro Tip: Making PCT changes before National Phase
Icebreaker: Name that Patent
Overview
What is the metaverse?
Rules of the Metaverse
Virtual Reality vs. Augmented Reality
What is virtual reality?
What is augmented reality?
Tips for drafting claims for the metaverse
Virtual Patent Infringement in the Metaverse
Tips for avoiding split infringement
Virtual Patent Infringement in the Metaverse: Apparatus Claims
Virtual Patent infringement: Doctrine of Equivalents
Crown Packaging Technology, Inc. v. Rexam Beverage Can Co.
Design Patent Implications
Outro