Enter the metaverse: Seeking patent protection for metaverse innovations

For software-based inventions, including those rooted in a metaverse environment, the state of eligibility is constantly evolving.

There are a number of ways to define the metaverse, but the simplest approach may be to see it as an environment that blurs the line between a virtual world and the real world. One well-known example is Pokemon Go, in which the universe of game play is imposed on, and coexists with, the physical world, and is accessed via mobile. In this article, we will talk about the metaverse in the broadest sense – as any such environment, which users can access from their desktops, mobile devices, and extended reality headsets.

Numerous companies are developing innovations for use in the metaverse and are forging ahead with patent filings to protect this intellectual property. In fact, several companies have gotten a head start on the filing process. Interestingly, a quick patent search reveals that several metaverse filings have priority dates extending back to the mid to late aughts. For applicants, developing a robust portfolio now around their metaverse innovations can help ensure that these important assets are protected as technology as this area continues to develop.

What innovations are eligible for patent protection?

Generally, patent applications can be filed both on the hardware components associated with the metaverse environment and on the software processes executing within the metaverse environment. Exemplary hardware innovations may include, but are not limited to, improved CPUs and GPUs configured for hosting or supporting the metaverse environment. Hardware innovations may further include physical devices to access the metaverse environment, such as extended reality headsets (eg, VR, AR, XR). Software innovations could include processes performed in the metaverse environment, processes for accessing the metaverse environment, and processes for synchronizing states of the metaverse environment.

The state of subject matter eligibility

One of the hurdles in seeking protection on computer-implemented inventions is overcoming the heightened eligibility bar. The types of inventions eligible for patent protection in the United States include inventions directed to any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof.  

For software-based inventions, including those rooted in a metaverse environment, the state of eligibility is constantly evolving. The release of the U.S. Patent and Trademark Office’s 2019 Patent Eligibility Guidance has lowered the bar for overcoming the eligibility hurdle. Now, examiners are limited in their ability to broadly construe what constitutes an “abstract idea” in favor for subject matter groupings that include certain methods of organizing human activity, mental processes, and mathematical concepts.

One consideration when evaluating metaverse innovations for eligibility is determining whether the innovative process has a non-metaverse equivalent. Traditionally, for software-based innovations, one consideration for courts and examiners is whether the claimed process is merely a manual or mental process confined to a computing environment. One could imagine that this principle could be extended to the metaverse environment. However, it is possible that rather than merely considering whether the claimed process is a manual or mental process confined to a computing environment, courts and examiners could further evaluate the claims to determine whether the process executing in the metaverse environment is equivalent to the same or similar process outside the metaverse environment.

Such consideration is similar to those used when evaluating a blockchain or artificial intelligence invention for patent protection. For applicants, merely implementing a process in a metaverse environment that executes in the same manner in a traditional computing environment may prove to be an uphill battle in securing an allowance. 

Novelty/non-obviousness: what is unique?

Evaluating the novelty/non-obviousness of a metaverse-based invention is an issue that is separate from the subject matter eligibility evaluation – but both factors rely on similar considerations.

One of the larger considerations in evaluating a metaverse innovation for novelty/non-obviousness is determining whether the process within the metaverse environment is similar to the same process outside the metaverse environment. If, for example, the only difference between the proposed invention and the prior art is that the proposed invention is confined to the metaverse environment, it may be difficult for applicants to clear the prior art.

This is why it would be prudent for applicants to identify that step in the process that is unique to execution in the metaverse environment. In other words, does the proposed invention include a step or series of steps that are performed to account for the change in computing environments (eg, metaverse environment vs. non-metaverse environment)? Details surrounding this step or series of steps will be relied on for clearing or overcoming such references. Of course, if the claimed process or hardware apparatus is completely novel or non-obvious outside the metaverse environment, then the risk of encountering problematic art is lowered.

You already know how to do this

The metaverse is sure to present applicants and practitioners with its own unique set of challenges for obtaining patent protection. Luckily, broadly speaking, the same principles or best practices for patenting blockchain innovations and artificial intelligence innovations can be applied to metaverse innovations to help applications successfully navigate through the patent office. When seeking a patent for your metaverse IP, rely on the process you already know.