What Will Patents Look Like in the Metaverse? - Chicago-Kent

Written by Michael Nega

Introduction

Ready Player One is a book about a character’s journey through an online universe. It describes an online universe that had essentially taken over the real world and where most people spend their time in this “metaverse.” While this story is fictional, the metaverse has recently been introduced to our world. Facebook has changed its name to “Meta” which revamped attention to the metaverse. [1] This renewed attention has sparked innovation in both hardware and technology spaces. [2]

The metaverse is a new space for innovation in interaction, and many new innovators of this technology are eager to develop new products. [3] These innovators are also scrambling to patent their inventions and products inside the metaverse to ensure their intellectual property rights are adequately shielded. [4] It makes sense that these companies, innovators, and entrepreneurs want to protect their ideas in the metaverse in the same way as they would in the real world. Many of these companies already own patents but, due to the potentially unlimited size of the metaverse, this continues to be an extraordinary opportunity for innovation and patenting. [5]

Patenting a product or an invention has a very formulaic process. Companies hire law firms to draft the patent, and the attorneys at the firm have a specific process they follow to ensure their client’s inventions will be adequately protected. “However, patenting this cutting-edge technology [inside the metaverse] is not without challenges.” [6]

This is a new frontier of technology. Attorneys, judges, and policymakers will need to be adaptable to ensure there are rules and, more importantly, that these rules are followed. This article will discuss three topics: (1) what the metaverse is; (2) what items and innovations are eligible for patent protection; and (3) what the possible barriers and challenges that companies will face are.

I. What is the Metaverse?

“The simplest definition of the metaverse is a shared virtual environment that blurs the line between a virtual world and the real world, accessed from desktops, mobile devices, and extended reality headsets.” [7] Another way to imagine the metaverse is that it is a three-dimensional model of the internet where you spend your digital life. [8] People are infatuated by the idea of the metaverse because it allows them to essentially have two distinctly different lives—one on earth and one inside the metaverse.

“It is a network of three-dimensional virtual worlds in which people can build virtual homes, run businesses, interact with their friends and families through their avatars, create art, enjoy travel, play games, etc.” [9] The opportunity to create life as one sees fit is yet another reason why humans might fall in love with this unique online universe. Furthermore, there is an equal opportunity for companies because of how potentially lucrative this online universe can be. [10]

The metaverse is another world where companies can sell their products and inventions. This is why companies have been aggressively developing and calling on inventions to create new online versions of their products. [11] “A well-known example is Pokémon Go, where the universe of gameplay is imposed on and coexists with the physical world and accessed via a mobile phone.” [12]

This opportunity for companies to create is also an opportunity for companies to take advantage of consumers. This is why there should be equal aggression in creating rules for intellectual property to protect humans’ future virtual lives.

II. What Items and Innovations Are Eligible for Patent Protection?

Patents can be filed both on the hardware components and the software processes used to create the product. [13] Although there are items we cannot possibly imagine being patented inside the metaverse, there are some common trends of products being patented today. ArentFox Schiff’s Michael Fainberg and Mohammad Zaryab state that metaverse technologies that companies are patenting are “systems for optimizing shared views of virtual objects to multiple wearers of VR headsets; algorithms for generating and moving virtual shapes and scenes in a VR environment based on hand gestures, head motion, or line of sigh of the user; systems for generating haptic feedback corresponding to users’ interaction with virtual objects in a virtual environment; and methods for generating 3D avatars of the users, which emulate users’ appearance and behavior,” among others. [14]

Fashion companies also have a huge opportunity to patent their items in the metaverse because people’s virtual avatars will be wearing clothes. Companies like Nike have already begun the process of patenting the virtual display of one of their famous shoes. [15] Nike and RTFKT revealed last year that they would be patenting their Nike Dunk shoes, making them customizable in the metaverse. [16] Nike’s “Cryptokicks” patent is one of the most widely enforceable patents when it comes to the metaverse, particularly in the context of virtual fashion and footwear. [17]

Overall, the opportunity to create new inventions inside this brand-new universe is limitless. But, at the outset, there are trends that companies have adhered to when patenting initial items in the metaverse realm. Nike might be one of the first to patent a fashion item, but it will certainly not be the last. [18]

III. What Are the Possible Barriers and Challenges That Companies Will Face?

Chasing patent protection in the metaverse will come with many challenges. To obtain a patent in the metaverse, companies will have to go through a similar process to obtain patent protection in the United States as they do with non-virtual inventions. [19] “[A]n invention must new [sic], useful process, and fall within the [sic] one of the four statutory categories ([process,] machine, manufacture or composition of matter) – or amount to a new and useful improvement on such an invention.” [20]

Patenting software is likely to be difficult, “due to the state of eligibility constantly evolving.” [21] Possible patent-eligible processes can include things performed in the metaverse or ways to access the metaverse. [22] The metaverse is supposed to be similar to the real world, but there are many places that will be created that are not from earth that would be deemed a simulation. [23] Because some of these patents would be based on a simulation, obtaining them could be very difficult. [24]

There will also be some difficulty asserting novelty regarding products in the metaverse. [25] Does the fact that a process within the metaverse is similar to a process or product outside of the multiverse affect novelty? “If the only difference between the proposed invention and the prior art is that the invention is confined to the metaverse this may make it difficult for applicants to clear the prior art.” [26]

Because of how new this technology is, companies will run into many bumps in the road when obtaining patents. Bust, as policymakers implement more rules, the process should be simplified. Hopefully, intellectual property law will be streamlined so companies can have the assurance that their inventions will be protected.

Conclusion

The metaverse is a new and unique opportunity for companies. But, because of how new it is, there is not much law to guide companies on how to evaluate risk. [27] Historically, policymakers have lagged behind technology when it comes to creating new regulations. [28] Therefore, to carve out space in the metaverse, companies must be willing to take on some risk in obtaining patents.