Patently Strategic - Patent Strategy for Startups
Patently Strategic - Patent Strategy for Startups
Into the Patentverse Vol. 2: AR, VR, and Virtual Infringement
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!
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Note: The contents of this podcast do not constitute legal advi
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
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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
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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?
01:11.050 --> 01:14.322
Along the way, the group also shares some great tips for drafting
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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
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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.
01:47.037 --> 01:50.907
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
10:05.395 --> 10:08.152
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,
15:39.415 --> 15:42.937
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,
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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
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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
56:27.702 --> 56:30.997
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
58:35.860 --> 58:39.997
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
59:13.270 --> 59:17.022
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,
59:49.762 --> 59:53.332
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
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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
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1:01:25.420 --> 1:01:29.225
constitute legal advice. And until next time, keep calm and patent on
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