The short answer is a resounding “Yes!” As mentioned in the introduction to our series of articles, protection of Intellectual Property (IP) in the XR arena is reasonably well understood. We have been protecting our clients’ interests for many years; with patents of XR technology arising in both fundamental and conventional technology types, encompassing everything from software algorithms & displays, through to actuation and sensing.
What is challenging, however, is that the smaller companies which develop and pioneer so much of this new technology, soon discover a new world of Patent Applications and associated innovation. This can prove daunting at first, until they become familiar with the tools & tips of the IP trade.
Let’s start with the basics – What is a Patent?
Patents are registered IP rights, which provide legal protection for inventions. On the face of it, this is a simple concept; it gives you the right to sue someone who is commercially exploiting your protected innovations. However, what does this protection actually mean for you and your company? And can a patent be used to achieve your business’ goals without sometimes lengthy, and often expensive, law suits?
A patent provides you with rights that essentially give you control over your invention. It identifies, through a government-examined and endorsed route, a recognised asset for your business and allows you the option to assert your rights against other companies that may try to exploit your technology without recognising (and rewarding) the hard work and effort that went into the creation of your asset in the first place.
This isn’t to say that the only value in your asset is through enforcing your patent rights. In fact, patent enforcement can be incredibly expensive and very few patents are ever litigated. Patent protection, just by being there, allows you to create uncertainty for your competitors and confidence for your investors.
A company which is encroaching into your arena is likely, once it becomes aware of your patent rights, to choose to either steer clear and find an alternate technology route, or to seek to license your technology, rather than run the risk of a potentially costly law suit. Investors often find that this provides a level of comfort & reassurance, which can be a plus when looking to divest as part of, for example, an exit strategy.
Another area of patent use we see is as a shield. In such a highly competitive and fast moving sector, it is unlikely that any company gets a “free run” at an area of technology unless they are the very first to spot that gap. Even then, there can be risks. By having one or two patents covering your key technology areas, you can have a valuable countermeasure against companies which try to impede your progress with their own IP, either through horse trading or the threat of litigation.
At the end of the day, whether you use them for the active protection or promotion of your technology, to raise funding, or to plan your exit strategy, patents represent a commercial tool which compliment your business’ goals and targets.
Patent State of Play Today
According to “How patents are shaping up for virtual and augmented reality” published in January 2019 by IPlytics, the number of patents filed which relate to XR technology has increased by 31% each year from 2015 to the end of 2018. When compared with the average increase in patent filings in general technologies of 5.2% over 2018 (according to the annual World Intellectual Property Indicators Report 2019 issued by WIPO), the importance of protection for inventions within the XR sector becomes, if you’ll forgive the pun, patently clear. This disparity is due, for the most part, to companies and investors pursuing an active acquisition program in the XR space.
According to “Virtual Reality” published in 2015 by LexInnova, the consumer electronics / software companies of Sony, Microsoft & Samsung are some of the largest patent holders in XR. This does not mean that there isn’t a place for fledgling XR companies with drive and passion to outsmart and outpace these larger players, especially with regards to IP strategy & stealth.
It is no secret that getting a patent application granted can be complex. This is especially true for inventions within the XR space due to their very nature; often, these applications relate to other fields, such as software or methods of medical treatment, where there are stricter regulations around what can and cannot be patent-protected in these areas. Statements from media outlets concerning the challenges of XR patenting can also cause confusion.
Ultimately, there are literally thousands of different patent applications out there for XR technology, covering the ever-popular fields of medical devices, data processing and e-commerce, through to education and beyond. This makes specialist XR patent attorneys, those who are well versed in the intricacies of both the opportunities and pitfalls associated with the ever-evolving landscape of this sector, key.
As a pioneer in this field, if you have some concepts that you believe are key to your commercial success, discuss with a patent attorney before you live to regret it. The quicker you do this, the more likely it is that you will be able to secure the rights to your innovations and beat the competition to it.
Andrew is a chartered patent attorney with over 15 years’ experience in drafting and prosecuting patents in electrical, electronic and software inventions. He heads the patent team for the VR/AR sector at Marks and Clerk and works for clients of all sizes ranging from start-ups to multinationals. In addition to the core patent attorney skills, Andrew has considerable first hand commercial experience advising on IP strategy, invention harvesting, freedom to operate and third party rights.
Christian joined the patent attorney profession in 2015, and has recently qualified as a registered European Patent Attorney. He has a keen interest in VR/AR technology and has significant experience in drafting and prosecuting patents in software, electrical, and mechanical inventions. He also has experience in providing freedom to operate assurance and in attending to issues relating to patent infringement action. With a background experience comprising both engineering and accounting, Christian is well placed to provide advice that has a strong commercial focus.
Kevin Joyce has been working with immersive technology since 2013, establishing VRFocus.com as one of the leading AR and VR publications before joining Admix, a non-intrusive advertising platform designed specifically for immersive experiences, as Lead Evangelist.