IP Insights: Patenting the metaverse

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In the last 3 decades we have seen a tremendous development of the World Wide Web. The latest development has created an even more futuristic vision, and part of this vision is the metaverse. But what is the metaverse?

The metaverse, Nadine, is basically a virtual 3D environment where you can, via your avatar, experience and interact in this environment. Imagine a parallel digital world, where you can meet friends or try out and buy new products. As an economic example, imagine a company that has developed a new product – instead of investing significant amounts of money to build manufacturing sites, to establish distribution logistics – why not simply place the product into the metaverse first, to see how customers will react?

I see. There are probably various kinds of technologies required for the metaverse. In a first step, you certainly need some kind of interface to enter the metaverse, I think of, for example, VR glasses, or some special gloves for a visual and also haptic experience. But also digital technologies will be certainly required, ranging from storage and processing capacities to highly advanced techniques, like Artificial Intelligence, to build the metaverse.

Absolutely, Nadine. And there is, already today, a large number of patents and patent applications for the technologies you mentioned. From a claim drafting perspective, one essential lesson is that you always direct the claims to a single entity. Take the example of the gloves – the claims should not refer to any element of a products that a user will “touch” with the glove. And the same applies to the software side or the processing side as well.

Right. In terms of infringement, enforcing a patent that is directed to a distributed system is typically much more difficult. Although even in a scenario where you cannot avoid ending up with a distributed system claim, we have established case law that allows for arguing patent infringement in Germany and that is likely also applicable to the scenarios in the metaverse. For example, steps performed by a third party, even outside Germany, can be attributed to the infringer if the infringer adopts them for their own economic purposes to establish an infringing result in Germany.

Now, we might have a solution for inventions design to build and help experience the metaverse. I guess more challenging questions will arise if infringement takes place entirely within the metaverse. Let’s take the example of an improved ski binding and a patent on this ski binding. What if a third party places a copy of this ski binding into the metaverse? I guess questions like “Where to sue the infringer?”, “Which law to apply” will arise. Right, Nadine?

Absolutely. If there is physical connection to Germany – for example, if the new ski binding is advertised in the metaverse but for an actual sale and use in Germany – then the established case law will probably be applicable, allowing for the patentee to take action in Germany. Without such a physical connection – for example, if the new ski binding is exclusively offered in the metaverse for use by your avatar in the metaverse – there is no obvious answer to those questions. I personally could image an argument being made by looking at the physical person behind the avatar – if this person virtually experiences the new ski binding in Germany, then this might be sufficient to create a link to Germany, and therefore allow to take action in Germany. However, we will have to see how courts will deal with these questions as the metaverse evolves.