Transcript

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

The following is a computer-generated transcript from the Patently Strategic Podcast. The results aren't always perfect, but we will continue working on improving the quality of the automation.

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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

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form the structural and economic underpinnings of the Metaverse by exploring

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tech concepts and IP implications surrounding web, three blockchain

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cryptocurrency and NFTs. Today, we build on this by

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expanding our conversation into the most likely interfaces for the Metaverse,

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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

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episode, Kristen Hansen, patent strategist and software patent

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guru here at Aurora, leads a discussion along with our allstar patent

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panel, exploring questions including what is the Metaverse?

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

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

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

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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

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that are performed in a distributed manner. This will almost always be the

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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.

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David Jackroll, president of Jackroll Consulting ty Davis,

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Patent Strategy Associate at Aurora and Dr. Sophie Lee,

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

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

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

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between method and apparatus claims. This comes up when the

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group is discussing virtual infringement or what happens when things invented

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in the physical or virtual world potentially infringe on one

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

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

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out the exact invention boundaries of what the applicant

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

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

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

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claims. Method and apparatus claims are two types of independent

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claims. While the distinction between independent and dependent claims

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

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

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Method claims typically recite steps required to achieve a result and

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

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a service. They're about protecting the process.

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

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

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Put another way, apparatus claims define what the invention is

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

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

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step in a given claim. For apparatus claims,

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infringement is shown by proving that a party used,

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

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all claimed pieces of a particular apparatus or product.

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

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called the doctrine of equivalence. This is a judicial principle

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created to prevent would be infringers from avoiding liability

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by simply making minor or insignificant tweaks to a

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patented invention. This doctrine allows patent holders

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

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

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

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device or method matches the function, way, and result

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

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

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

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important role in determining infringement in the metaverse.

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

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

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discussion around the interface of the metaverse.

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

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this pattern that goes from confusion and creative exploration

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to unfettered and unquestioned excitement to a steep cliff of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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layers of abstraction removed as invested persons in the innovation

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

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

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

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

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

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

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Horizons Innovators define the undefined, and we intend

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

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

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today. Do you want to skip

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

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

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

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

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

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

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So we had this really weird situation where

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

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IDS's and they like, never showed

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up in the image file wrapper, just until

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

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

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So we obviously, like, realized this and apparently

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leave it to the PTO to have a weird back end

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

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

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

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I don't know. Regardless, we had to

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

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They had to escalate it and it took like weeks for

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

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

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

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

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did indeed file them and that allowed them to

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

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

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

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

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had emailed me separately when things started showing up on

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

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across two or three clients.

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

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

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in the PTO. So just weird things,

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

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

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

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So fun fact,

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

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

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

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FBO eight. It was across different clients

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

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

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

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

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but thank goodness we saved the filing receipts because that

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

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

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or three different clients and across at least three to five

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different cases and different dates too.

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

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

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That the weird thing. Do you check EFS now?

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What do you do?

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Somehow check that it shows up in a certain time

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

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

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

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notice of allowance checks that we all should be doing

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

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

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

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

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other thing to not realize that some ideas just never

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showed up. Right. It's a

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

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

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the right things are there that you think you filed because

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clearly some stuff and I guess the other

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

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

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Making sure that all your ideal scenario.

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All your Pct changes are taken

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

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

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So we've been setting a deadline for a month

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

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record any changes so you can get that all buttoned

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up before national phase you have to do another country because

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there's also like I think from an inventorship and

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applicant perspective. I think if things aren't

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quite right, then you can break priority in some weird

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

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

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

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

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What is this patent pat on

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the back, back scratcher background?

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

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

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

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

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

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

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And basically I want to do kind of a what is

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it? How do VR and AR fit in,

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

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

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so historically, what is the medverse?

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

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

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

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heroes who have to save the world from an infocalypse.

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

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

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

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

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too, either.

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Well, Facebook sure like that because they reiterated

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

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things for the metaverse.

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

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Facebook adjacent. It really does mean this

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kind of virtual

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world where you have pieces and parts of

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

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world that can seep out via software

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

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metaverse can be like beyond the universe, a space

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where you can interact with virtual objects in real life

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and with real time information. It's called

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the convergence of physical, digital and augmented reality.

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

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

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

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

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also see the real world through.

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So that could be kind of a metaverse in itself,

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and it can absolutely be shared amongst

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many users. The other situation that

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

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

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All right. And often they do discuss

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the maniverse as having its own economy because

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you can do all kinds of things, including trade

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information, trade money, make purchases,

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all kinds of things like that. So all of that

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

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And so there is a capitalist, a venture capitalist,

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

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characteristics. And what he

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came up with was this is basically a world that has

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a persistence. Which means it unlocks technical limitations

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for the user to improve the metaverse's immersive nature

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and allow what they call a continuous virtual world.

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Which means you can always be in the virtual

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

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you can always view data from the metaverse while going

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about your regular life. And if you remember,

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years ago, Google Glass was kind of an old

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

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on one eye and it allowed you to record

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and view content basically what

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

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

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And many others have come further and created entire

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head mounted displays that provide this.

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So that one piece was persistence and it was

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being able to engage in both.

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

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basically they merged different virtual worlds and systems.

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So you could merge the metaverse piece,

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

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maybe you're also making a purchase in there. And then you could be

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going about your daily life.

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Scaling was important. You have the ability to increase the

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size of the metaver so you can connect up to other things around you.

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And as you can imagine, this is really the concept

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is similar to merging a bunch of servers

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or merging a bunch of different computing devices and being able to access it

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all together. But because you're running differently,

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you're running either virtual software or you're running actual

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other software from the real world that bleeds into the

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metaverse because you're accessing it through something in the metaverse. So you could

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have virtual points, access points,

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all kinds of things. And then the other piece was

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economy and identity and the fact

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that the metaverse could have its own independent economy and

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it could have many identities for many

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users. So if you imagine like, avatars, you could have five avatars for one

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user, or you could have a work avatar and

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a home avatar, depending on what you access and what you're into and

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your hobbies. And then it

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would be both digital and physical. So it would span across

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many aspects of life. And that's basically

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what I was saying. You can bleed together many software

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executing systems from the real world and software

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executing systems from virtual machines executing

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in a metaverse. And they don't actually execute

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the metaverse, but if you're calling it the Metaverse.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

28:58.537 --> 28:59.300
well,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

35:15.037 --> 35:19.152
could infringe

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

56:05.230 --> 56:08.047
for things you wouldn't have thought of to get a design patent for. Do you

56:08.080 --> 56:11.382
now get a design patent form more from just protecting

56:11.397 --> 56:14.900
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

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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

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around solutions to patent protection in virtual

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worlds and kind of what you can do in virtual worlds

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to protect yourself a little more as you write claims for services

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or content in the Metaverse or services and content

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accessed in the Metaverse. I think it's going to be similar to

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what we do for virtual and augmented content now.

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But I think you'll have to abstract at one level

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more because it is not just your

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own software that you create and display. This is

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something where you are integrating services and you're

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dealing with multi user access and

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things that normally are just provided from a

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server or a bunch of servers. And in this situation you

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may be accessing multiple things in multiple ways that are meant to

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be merged and used together. And how do you

59:06.340 --> 59:08.992
create products like that and protect products like that?

59:09.040 --> 59:13.102
Right, well, what I'm thinking is we set up a virtual room

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and write virtual patents and get issued

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virtual patents.

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It's going to go full on virtual, but I wrote mine in the virtual

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world. Yeah, I don't know.

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They've been doing it for decades in the virtual and augmented spaces.

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And like I said, some of the tips and tricks there are to use the

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language of the world that you're in.

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But often you would receive video game

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art or old school like

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Microsoft productivity patents, art,

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things that solve these problems in a different way, but not for

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the virtual world.

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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
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1:01:15.657 --> 1:01:18.352
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1:01:21.957 --> 1:01:25.402
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