PatentNext Takeaway: The concept of the “Metaverse,” while decades old, is just starting to gain traction today. Early efforts to establish the Metaverse came from the video game industry. That is, as video games have become more modern, they are increasingly designed to have interactive virtual worlds, which is a hallmark of the Metaverse. Because of this, we can expect the U.S. Patent and Trademark Office (USPTO) and courts to look to prior art and previous cases involving video game technology to decide Metaverse-related issues in the future. For the same reason, we can also use best practices for patenting software-related technologies (upon which video game technology relies) to prepare Metaverse-related patents.

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What is the Metaverse?

In 1992, in his cyberpunk novel titled “Snow Crash,” author Neal Stephenson coined the term “Metaverse” to describe an online, virtual reality (VR) enabled world where the inhabitants of humankind could interact and escape the unpleasantness of the dystopian world portrayed in the novel.

Fast forward to the present day, and Merriam-Webster defines the “Metaverse” in a similar manner 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 a more expansive definition that can include, but is not limited to, VR. Instead, the “Metaverse” can more broadly be characterized by a persistent virtual world that continues to exist even when a person exits (“logs off”) from that virtual world. The Metaverse can be accessed via one or more immersive technologies, including VR, augmented reality (AR) (i.e., a technology that combines aspects of the digital and physical worlds), and/or standard 3D technology, the latter of which can include standard display screens of personal computers, game consoles, and even mobile phones.

Interactive virtual worlds are not new. Instead, modern video games now routinely include this feature. Therefore, it can be argued that 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 Life, and Fortnite, among 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 over time, they have increasingly become online and more socially 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 (over a decade ago).

Most of the Metaverse-related patent 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. Given the increased interest in the Metaverse, we can expect further filings in this space in the coming years (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. See 37 CFR § 1.211).

In addition, the above chart organizes patent application filings by Tech Center. As shown, most Metaverse-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 that 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 also 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 have received a majority of the Metaverse patent application filings, and we can expect that this trend will continue going forward. 

Treatment of Metaverse and Videogame technology by the Courts

To date, there has been little or no court activity citing the “Metaverse” per se. Nonetheless, 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,” and other hallmarks of Metaverse-related technology.

For example, 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 U.S.C. 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, which are technologies that are frequently challenged as non-patentable “abstract ideas” under the U.S. 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. In particular, the patents described, e.g., “a highly scalable architecture for a three-dimensional graphical, multi-user, interactive virtual world.” U.S. Pat. 7,181,690, Abstract (the “’690 Patent”) (emphasis added). In addition, 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 Patent.

The Federal Circuit focused on a set of claims directed to determining a maximum number of user avatars (i.e., in-game virtual characters) that could be displayed at one time. In particular, claim 1 and its dependent claim 4, recite the “avatars.” Claim 4 was treated as the representative claim in the Worlds cases:

As an example, Figure 1 of the ’690 Patent illustrates a set of avatars as penguins:

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 Mayo/Alice analysis in these cases.” Worlds at 16.

Specifically, in Worlds, the Federal Circuit found 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 that could be used on a general-purpose computer 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. at 19.

Because of this, Claim 4 failed to be “inherently inventive”  and further failed to sufficiently “‘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 U.S.C. § 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 U.S.C. 101/Alice.

To the extent the reader is interested in accomplishing this, please see PatentNext’s articles on best practices for patenting software inventions. See, e.g., How to Patent Software Inventions: Show an “Improvement”; Why including an “Algorithm” is Important for Software Patents (Part 1); and Why including an “Algorithm” is Important for Software Patents (Part 2).

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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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