There’s a super interesting article just published in the AIPLA quarterly journal by one our (Banner Witcoff’s) law clerks, Sonia Okolie, on design patents within augmented and virtual reality. She does a great job analyzing the relevant issues and proposes some interesting solutions.

This article has further applicability in the wake of the Supreme Court’s ruling in Apple v. Samsung, which held that the article of manufacture (for purposes of determining infringer’s profits) could be the entire article, or could be something less than the entire article.

Based on the increasing popularity of AR/VR systems, applications, and games, this is an important issue that will need to be addressed, either by courts or by congress. Sonia does a great job laying the foundation for such a discussion.

Here’s the Abstract:

Augmented and virtual realities provide users with multisensory immersive experiences. As the technology involved in augmented and virtual realities continues to develop, so too does the likelihood of copying, given how lucrative and innovative this technology has proved itself to be. Design patents are an obvious choice for protecting the aesthetic appearance of these dynamic three-dimensional digital models. Design patent eligibility statute 35 U.S.C. § 171 protects the ornamental appearance of a design applied to an article of manufacture, without elaborating further on the scope of the term. A thorough analysis of the statutory and judicial constructions of the term article of manufacture, as well as the subsequent risks to finding patentability, yield the same conclusion: either congressional or judicial action must be taken to ensure proper protection for these designs. This Note proposes a two-part approach for addressing the article of manufacture for augmented and virtual reality design patents. The first step proposes that courts consistently construe the article of manufacture broadly, while the second step, in the alternative, proposes an amendment to the language of § 171 in an effort to ensure protection for augmented and virtual reality designs, by making deliberate statutory allowances for future technologies.

The article itself is paywalled, but if you have access to the journal, I highly recommend giving it a read.

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