Academic journal article American University Law Review

Redefining Reality: Why Design Patent Protection Should Expand to the Virtual World

Academic journal article American University Law Review

Redefining Reality: Why Design Patent Protection Should Expand to the Virtual World

Article excerpt


"What is real? How do you define 'real'? If you're talking about what you can feel, what you can smell, what you can taste and see, then 'real' is simply electrical signals interpreted by your brain. "1

Given the explosion of virtual reality ("VR"), an environment where the real world is replaced with a virtual one, and augmented reality ("AR"), an environment where the real world is supplemented by computer-generated input,2 this once futuristic quote from The Matrix has become more relevant today. These technologies are available to consumers through a variety of gadgets, ranging from high-end headsets, such as the Oculus Rift,3 to more common products, such as a smartphone screen and camera that are used in Pokémon Go.4 These technologies seek to immerse the user in a virtual reality, seamlessly merging the real and electronic worlds.5 As touted by most manufacturers of VR and AR technology, this technology provides a new canvas for movies, video games, and advertisers.6 Content developers create these worlds using three-dimensional models, which are computer-programmed models that mimic items in our world.7 Once the technology matures, the line between the physical world and the virtual world may seemingly disappear.8 As this line disappears, it may become impossible to distinguish a physical object from a virtual three-dimensional digital model placed right next to it.9

Unsurprisingly, the explosion of these technologies presents new challenges and questions regarding intellectual property rights.10 One question involving the interaction between intellectual property and the VR and AR worlds is whether a three-dimensional digital model will meet the statutory requirements for a design patent, which protects the aesthetic appearance of a functional item.11 In recent years, design patents have grown in value, making them important parts of an intellectual property portfolio.12 As the use of VR and AR continues to grow, individuals and businesses will likely seek to use such patents to protect the three-dimensional digital models used in these worlds.

Although the need for design patent protection of three-dimensional models has grown, design patent protection for the models has an uncertain legal future. Congress last updated the design patent statute in 1952 when it amended 35 U.S.C. § 171 to grant a design patent to "[w]hoever invents any new, original and ornamental design for an article of manufacture."13 Thus, to receive a design patent, the design must be "for an article of manufacture."14 As written, the scope of the article of manufacture requirement is unclear, but throughout the twentieth century, courts were willing to interpret the requirement fairly broadly.15 However, the U.S. Court of Appeals for the Federal Circuit recently articulated a narrower view, first when applying the requirement to electronic and digital technologies,16 and next when interpreting article of manufacture requirements in statutes akin to § 171.17

This Comment argues that as VR and AR technologies develop, the Federal Circuit and the U.S. Patent and Trademark Office (USPTO) should interpret the design patent subject matter protection statute broadly, incorporating three-dimensional digital models into its scope. Part i provides background, surveying the history and current state of the art of VR and AR technologies, and reviews the USPTO's and the courts' interpretations of § 171 of the design patent statute. Part ii then argues that courts should apply a broad interpretation of the article of manufacture requirement as adopted by the U.S. Court of Customs and Patents Appeals (CCPA), and that the Federal Circuit improperly narrowed the scope of an "article of manufacture" when it applied the requirement to three-dimensional digital models.


The recent advancement of VR and AR has put these technologies on a collision course with design patent law. …

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