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The VRARA are delighted to have partnered with Stephen Ferance of Gowling WLG Vancouver to produce this seminal whitepaper, offering all a more profound extrapolation of patenting, and its conduciveness to VR/AR technology specifically.
Ferance speaks to Alice from Alice v. CLS Bank, a decree issued by the Supreme Court that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. As you can guess, or may well have experienced yourselves, before Alice the generic law surrounding patents galvanised greedy patent buyers to attack startups and to skew R&D innovation before it had truly taken flight.
Since Alice’s implementation in 2014 by the Supreme Court, it has been pivotal in fighting back against so-called patent trolls. Now gone are the days that patent owners could lock down an IP without barely contributing to the development of the technology. R&D has flourished as a result and arguably so has software development and innovation.
Can VR/AR technology too be saved by Alice?
With the current climate, and with four years of Alice battling patent rogues, Stephen Ferance is largely positive about the future trajectory of patenting, especially relating to XR hardware. He comments that claims to such are ‘unlikely to be struck down as abstract ideas’ unlike some of the other case studies mention in the paper.
Secondly, he states that ‘even for software-implemented inventions, VR and AR technologies are conveniently amenable to a number of the exceptions to the “abstract idea” exclusion from patentability.’ This is due to the fact that many VR and AR developments will ‘improve the functionings and capabilities of a computer,' or ‘may even provide a new set of rules to improve animation.’
Thirdly, Ferance makes the astute observation of the link between venture capital and companies that have patented their IP, ‘if venture capital investors have literally hundreds of innovative companies to choose from, their screening processes will almost certainly eliminate those companies that have not taken adequate steps to patent and protect their intellectual property.’
The conclusion strikes a motivational chord for all business owners, technological innovators and creators in this space - ‘Against this backdrop, it must be borne in mind that the patent system is a first-to-file system, so patenting is indeed a race, just as much so as the race to the land claims office back in the days of yore. Those who sit on the sidelines to see how things shake out will find themselves left out and likely eclipsed by their competitors, while those who instead take decisive action to protect their innovations at the earliest opportunity stand to reap the rewards of an industry poised for exponential growth in the coming years.’
Written by Faye Maidment, Marketer and Communications Officer for VRARA Vancouver.
