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What will incentivize owners to patent their augmented reality creations?

Written By: Gabriela Vasquez

Initially, virtual reality was confined to a two-dimensional screen. [1] Over the years, virtual reality has surpassed its capacity, moving in a 3-dimensional direction with the ability to interact with humans and other physical objects. This process is known as Augmented Reality (AR). It is technology that adds digital content to our experience of the physical world. [2] AR makes the physical world “clickable” by inserting digital interactive hyperlinks into our physical space. [3]

Today, AR is mostly used to enhance the sense of sight. [4] Engineers are working to digitally augment our fields of vision in various ways, for example, mobile computing, digital imaging, advertisements, and content creation. [5] Due to the extreme commercial activity implicated in the process of distributing AR to the public and the rapid innovation and competition in the market, intellectual property disputes in the world of augmented reality are on the rise.

There have been numerous patent infringement issues arising in the last few years. Notably, Lennon Image Technologies, LLC (“Lennon”) has filed various patent infringement suits against multiple online retailers over the years for its patent titled “Customer Image Capture and Use Thereof in a Retailing System”. [6] Lennon’s patented technology developed a virtual “try-on” system, giving customers the opportunity to virtually assess the selected merchandise without having to physically try-on the apparel. [7] A variety of these suits have resulted in settlements or the online retailer’s removal of the virtual try-on feature from their website after receiving allegations of infringement. [8] This is likely due to the expenses attached to patent infringement litigation and the recognition of how expensive it is for anyone to patent their creations and designs.

In a seller’s market, there is pressure to introduce the next best thing. Augmented reality provides the highly competitive online retailer market with the technology and ability to create unique, interactive shopping experiences for customers. These experiences can include the ability to try-on or test-drive a product without leaving your couch, browse virtually, design custom goods, or receive product specs and features information in context. [9] Providing these features gives online retailers the opportunity to increase their revenue, retain clients, and set their brand apart from similar competitors. [10]

Virtual retailers and the creators of AR technology have a huge incentive to patent creations and designs before they hit the market, as these virtual “experiences” risk losing novelty through disclosure. AR in virtual retail will only continue to expand at faster rates in years to come. It is of utmost importance that virtual retailers are aware of the necessity to protect the AR technology they spend a significant amount of time and money to distribute to the public, hoping to profit through e-commerce. If their competitors have the ability to introduce the same exact AR interactive shopping experience without legal restraints, less economic incentives exist for developers and the virtual retailers that foot the bill.

[1] Brian D. Wassom, IP in an Augmented Reality, ABA (Jan./Feb. 2014) https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2013-14/january-february/ip_an_augmented_reality/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Customer Image Capture and Use Thereof in a Retailing System, U.S. Patent No. 6624843 B2 (filed Dec. 8, 2000 ) (issued Sep. 23, 2003 ).

[7] Id.

[8] Wassom, supra note 1.

[9] Lisa Terry, VR in Retail: The Future of Shopping is Virtual and Augmented, INSIGHTS (Jul. 31, 2018) https://perma.cc/LS7X-AR62.

[10] Id.

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