IP Rights in Augmented Reality and Virtual...

IP Rights in Augmented Reality

and Virtual RealityProtected Works, Third-Party Marks, Content Created for AR/VR, Content Created in VR

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WEDNESDAY, OCTOBER 30, 2019

Presenting a live 90-minute webinar with interactive Q&A

Kimberly Culp, Director, Carr McClellan, Burlingame, Cal.

Brian D. Wassom, Partner, Warner Norcross & Judd, Southfield, Mich.

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KIMBERLY CULP

CARR McCLELLAN P.C.216 Park Road, Burlingame, CA 94010M (650) 342-9600 D (650) 696-2509

kculp@carr-mcclellan.comcarr-mcclellan.com

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Brian D. Wassom Warner Norcross + Judd LLP

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PATENTS & TRADE SECRETS

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AR/VR Patents

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Patent Infringement Litigation

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Patent Infringement Litigation

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Patent Infringement Litigation

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Patent Best Practices

• Employees: All your base are belong to us• First to file• File first or NDAs• Freedom to Operate Opinions• Ounce of Counsel > Pound of Infringement

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Zenimax v. Oculus VRCauses of Action: common law trade secret misappropriation; copyright infringement; breach of contract; tortious interference w/ contract; etc.Trade secrets included: confidential programming code, methods, plans, designs, concepts, improvements, modifications, research data and results, know-how related to virtual reality headsets. Verdict: No misappropriation of trade secrets

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GeoVector Corp. v. Samsung Electronics, 234 F. Supp.3d 1009 (N.D. Cal.

Feb. 14, 2107)

Causes of Action: Direct and indirect patent infringement; misappropriation of trade secrets under CA and NY lawNot a Trade Secret: Expert analysis of Samsung’s products, GeoVector’s products, augmented reality principles, the use of those principles in Samsung’s products, and the patent process for protecting those principles

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Voorhees v. Tolia et al, Case No. 16-8208-BRM-LHG (D.N.J. Jan. 30, 2018)

Claims: trade secret misappropriation under NJ law; breach of contract; fraud; breach of confidence; trespass; unfair competition; etc.Outcome: Case dismissed

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Best Practices

Dialogue w/ team to identify trade secretsAll the agreementsPre-hiring diligence regarding candidatesCreate a culture and processes that protects your trade secretsStrategic off-boarding

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TRADEMARK

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Trademark 101

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AR/VR Trademarks

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Unauthorized Augmentation of TMs

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AR Keyword Advertising

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AR Keyword Advertising

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SENSORY MARKS?

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TRADE DRESS

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GRAPHICAL USER INTERFACE

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COPYRIGHT

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Originality

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Useful Articles

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Media of Expression

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AVATAR OF A COPYRIGHT

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COMPUTER OUTPUT

Photo by Sai Kiran Anagani on Unsplash32

AUGMENTED REALITY

Image courtesy of Sebastian Errazurizand CrossLab33

Derivatives / Incidental Reproduction

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Derivatives / Incidental Reproduction

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Derivatives / Incidental Reproduction

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Derivatives / Incidental Reproduction

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Public Display

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Public Performance

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AR Devices as Copyright Cops

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RIGHT OF PUBLICITY

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Righ

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licity 10

1

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Augmenting Identities

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Posthumous Rights

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Lohan v. Take-Two Interactive Software31 N.Y. 3d 111 (Mar. 29, 2018)

Issue: Whether an avatar could constitute a “portrait” within the meaning of NY lawHolding: YesHowever: “the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics.”

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Davis v. Electronic Arts Inc.2018 WL 3956212 (N.D. Cal. Aug. 17, 2018

“There is little doubt that EA made efforts to render the avatars generic or anonymous to some degree. A reasonable inference is that EA was trying to have it both ways: it wanted its customers to believe they could have genuine reenactments of games with representations of the actual players, while simultaneously hoping to remove enough identifying features that the former players could not claim a license was legally required.”

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STRATEGIES FOR MITIGATING RISK

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TERMS OF USE / EULA

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DMCA / CDA

“The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 USC s 230(f)(2)

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Sync Licensing

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Sync Licensing

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