Demonstrating how software can qualify for a patent through virtual reality

Along with artificial intelligence and blockchain, virtual reality (VR) and augmented reality (AR) have long been billed as technologies in development today that have the potential to transform our future. There were some false starts in AR/VR – for example the promise of Google Glass is still yet to be realised. However, we have since seen other companies such as Oculus come to fore, and even real mainstream adoption – from the success of Pokémon GO to the BBC’s VR coverage of the 2018 Fifa World Cup. However, it’s still an emerging technology, and there is a lot of potential yet to be tapped.

The UK is one the countries leading this charge. As an interactive map from PwC, Catapult and Immerse UK shows, there were 463 listed VR or AR companies across the UK in July 2017, and the figures are clear that the UK is the largest market for immersive technology in Europe. There are teams of developers throughout the country working on cutting-edge technologies to create everything from better picture quality, new worlds to explore, or even just more comfortable headsets.

The UK’s success in VR and AR is in part thanks to its legacy as a forerunner in the gaming industry, which is where a lot of the breakthroughs in VR/AR have come from so far. The UK also benefits from a number of government and industry initiatives, which provide the infrastructure to facilitate innovation and growth. For example, Immerse UK was established last year as a free directory to connect different aspects of the VR/AR industries and encourage collaboration, and in March 2018 the UK Government announced a £33 million fund dedicated towards immersive technologies.

In line with the advancements we can see taking place in the industry, a quick keyword search of “virtual reality” and “augmented reality” in the records of the European Patent Office (EPO) shows a significant increase in the number of patents granted in this space in the last three years. These figures show a sharp jump in 2017 especially, and the figures for 2018 (which run up to early August) so far suggest there could be even more granted European patents in this space by the end of this year.

VR/AR Patents granted by EPO 2013 - 2018

It is interesting how many of these patents relate to the software aspect of VR/AR, which makes this another case that overcomes the often-held belief that computer software cannot be patented in Europe.

This myth comes from the fact that the European Patent Office, like the UK Patent Office, excludes computer programs from being regarded as an invention, rendering them inherently unpatentable. Yet, we can see that patents to many computer programs in VR and AR have been granted. That is because of a critical line in the infamous Article 52 EPC where it states that computer programs – along with the likes of discoveries, mathematical methods and business methods – cannot be regarded as an invention “as such”. This saving clause means that it is possible to patent software, as long as it offers a technical innovation over the prior art. For example, an innovation would qualify for European patent protection if it improves the interaction experience between a human and a computer, which VR often does. This is particularly the case where the innovation relates to a mechanism for providing user input in VR or AR, as opposed to how output is presented to a user.

The very nature of VR and AR (i.e. creating digital interfaces that replace or enhance the physical world) means that the software is often likely to have a very clear technical effect that echoes one in real life. This is because the software often acts as an interface between the user and the system, enabling the user to control and manipulate the virtual (or indeed real) environment in some way.

Let’s take driver-assistance systems incorporating an AR component as just one example.   It is conceivable that a driver may be able to provide commands to a vehicle, e.g. adjusting a music volume or initiating a hands-free phone call, by interaction with the AR component of the driver-assistance system. It is important that providing these commands to the AR component during driving does not impair the driver’s ability to drive safely. Interpretation of the driver’s commands will be performed using the software behind the AR component, and a patentable invention may be found in AR software that enables the driver to provide commands in a manner that minimises distraction, for example.

As the figures show, many VR/AR companies are indeed applying for European patents, and the EPO is clearly amenable to these applications – with at least 12 granted already this year. Therefore, companies developing this software should not be put off exploring the option of European patent protection. Often there is an element of the software that has an associated technical effect that could be enough to protect the entire AR or VR system, and give the company a critical business advantage

When it comes to intellectual property, companies should consider all their options. While code automatically enjoys protection via copyright, a patent is the strongest form of protection, and can make all the difference if a company is looking to raise its value and become more attractive for investment, mergers or acquisition.

GJE’s ConsultIP is a unique set of consultancy services specifically designed to help organisations answer fundamental questions about their IP, just like this. If you have an innovative piece of software that you think might be patentable, why not have a session to see if you’re on the right track? Find out more about ConsultIP here.