The concept of the “Metaverse,” while decades old, is just starting to gain attention today. Early efforts of patenting Metaverse technology come from the video game industry. That is, video games are increasingly designed to have interactive virtual worlds, which are a hallmark of the Metaverse. We can expect courts to look to video game technology and related cases to decide Metaverse-related issues in the future. We can also use best practices for patenting software-related technologies to prepare future-proof Metaverse-related patents.
What is the Metaverse?
In 1992, in his cyberpunk novel titled “Snow Crash,” author Neal Stephenson coined the term “Metaverse” to describe an online, virtually reality (VR) enabled world where the inhabitants of humankind could interact and escape the dystopian unpleasantness of the world portrayed in the novel.
Fast forward to the present day, and Merriam-Webster defines the “metaverse” similarly as “a highly immersive virtual world where people gather to socialize, play, and work.”
Others, including wired, have recognized that the term “Metaverse” has taken on an expensive definition that can include, but is not limited to, VR. Instead, the “Metaverse” is featured by persistent virtual worlds that continue to exist even when a person exits the virtual world. This can include one or more immersive technologies, including VR, augmented reality (AR)— a technology that combines aspects of the digital and physical worlds—and/or standard 3D technology, which can be accessed via standard display screens on more traditional personal computers , game consoles, and even phones.
Viewed through the lens these expansive definitions, the “Metaverse” had an early start in the video game industry. In particular, virtual worlds where people gather and interact have existed in popular games such as World of Warcraft, Second Lifeand Fortniteamong others, since at least the early 2000s.
Metaverse Patenting Trends
Given the history of the “Metaverse” in the video game industry, it comes as no surprise then that early patenting activity also started in this space. As video games have matured overtime, they have increasingly become more online and interactive—thereby stepping more and more into the sphere of the “Metaverse.” Companies have started to take notice of this trend. For example, Microsoft cited its interest in the “Metaverse” as a key reason for acquiring the game developer Activision Blizzard, in a $68.7 billion deal, saying the game developer would provide “building blocks for the Metaverse.”
The below chart shows Metaverse-related filings by Technology (“Tech”) Center over time from 2000 to 2022, where we see a spike in activity in 2008.
Most of the filings come from video game companies, or companies that produce video game-related technology, including Activision Blizzard, Inc., Microsoft Corp., Leviathan Entertainment, and IBM.
After the spike in 2008, the above chart shows continued activity up to the present day. We can expect further filings of “Metaverse” related patents in the coming years (past the 18-month publication delay; note that the right-most side of the graph slopes down because of the 18-month “Publication Delay,” during which information for newer patent application filings, is not yet publicly available. 37 CFR § 1.211.).
In addition, the above chart organizations patent application filings by Tech Center. As shown, most AI-related patent applications fall into one of two Tech Centers. first, Tech Center 2100 (purple color in the above graph) includes examiners that handle “Computer Architecture and Software” inventions. It is not surprising that Metaverse patent applications end up here because Tech Center 2100 includes the specific graphics-related Art Unit 2140/2170, which handles technology involving “Graphical User Interface and Document Processing,” which are core technologies of the Metaverse.
In addition, Tech Center 2600 (red color in the above graph) handles “Communications” technology. Tech Center 2600 includes several art units that handle technologies firmly in the Metaverse space, including for example, 2610 (“Computer Graphic Processing, 3D Animation, Display Color Attribute, Object Processing, Hardware and Memory.”), Art Unit 2615 (“Computer”) Graphic Processing”); and Art Unit 2620 (“Selective Visual Display Systems”).
Together these two Tech Centers receive a majority of the Metaverse patent application filings.
Treatment of Metaverse and Videogame technology by the Courts
While Metaverse-related patents remain relatively new and there has been little or no court activity citing the “Metaverse” per se, we can get a preview of court treatment of Metaverse-related patents by looking at court cases involving video game technology. For example, there have been several court cases that involve “virtual worlds,” “virtual reality,” or other hallmarks of Metaverse related technology.
one recent case, Worlds Inc. v. Activision Blizzard, Inc., demonstrates that Metaverse-related technology will face the same scrutiny as other video game technologies – namely, scrutiny under 35 USC 101. Case No. 1:12-cv-10576 (Fed. Cir. Apr. 30, 2021). After all, Metaverse technology is fundamentally rooted in computer and software-based technology, each of which is frequently challenged as non-patentable “abstract ideas” under the US Supreme Court’s test in Alice Corp. v. CLS Bank International. See Are Software Inventions Patentable?
in the worlds case, the Federal Circuit considered a set of patents directed to Metaverse-related technology, where the patents were self-described as, eg: “a highly scalable architecture for a three-dimensional graphical, multi-user, interactive virtual world” US Pat. 7,181,690, Abstract (the “’690 Patent”) (emphasis added). The patents sought to provide “an efficient system for communication between many client systems over dedicated or open networks to provide graphical interaction between users operating the client systems.” ‘690 Patents.
With respect to the ‘690 patent, the Federal Circuit focused on a set of claims directed to determining a maximum number of user avatars (ie, in-game virtual characters) that could be displayed at one time.
As an example, Figure 1 of the ‘690 Patent is provided below, which illustrates a set of avatars as penguins:
In addition, claim 1 and its dependent claim 4, which were at issue in worlds, are provided together below. Claim 4 was treated as the representative claim in the worlds cases:
Despite the Metaverse-related technology at issue, the Federal Circuit in worlds found that Claim 4 was directed to an abstract idea “similar to those abstract ideas found to be patent-ineligible in step one of the Swimwear/Alice analysis in these cases.”
Specifically, the court in worldsfound that the type of “maximum capacity” filter employed in claim 4 of the ‘690 patent was directed to the abstract idea of “solving the problem of crowd control by teaching a computer network architecture to enable multiple users to interact.” worlds at 16. The abstract idea was “analogous to real-world maximum capacity limits on elevators, at restaurants and other physical spaces typically open to the public” ID.
In addition, the worlds court found that claim 4 lacked an “inventive concept” sufficient to save the claims. In particular, the court found that “[c]Lient-server networks, virtual worlds, avatars, or position and orientation information are not inventions of Worlds” but rather well-known technology used on a general-purpose computer configured to employ “well known filtering or crowd control methods and means that ultimately use same to display graphical results and generate a view of the virtual world.” ID. horse 19.
Because of this, none of the claimed subject matter “is inherently inventive or sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” ID. For all these reasons, claim 4 failed to involve an inventive concept necessary to convert the abstract idea into a patent-eligible process, and therefore was found invalid as a matter of law under 35 USC § 101.
Thus, looking at video game-related cases, such as worlds, we get a preview of court treatment for Metaverse-related patents. One lesson: it remains a best practice to draft software-related patent applications with an eye to overcoming issues related to 35 USC 101/Alice.
To the extent the reader is interested in accomplishing this, please see PatentNext’s articles on best practices for patenting AI inventions. See How to Patent an Artificial Intelligence (AI) Invention: Guidance from the US Patent Office (USPTO) and How to Patent Software Inventions: Show an “Improvement.”
Please note that the charts and their related information in this article are provided courtesy of Juristat. The charts and information were obtained by searching for “metaverse” OR “meta-verse” OR “meta verse” using the fields Title, Abstract, Description, and Claims in the Juristat app.
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