Law360 recently reported on the U.S. Patent and Trademark Office’s new guidance expanding design patent protection to computer generated images displayed through projections, holograms, virtual reality, and augmented reality (PHVAR). The March 12 update marks a significant shift from the USPTO’s 2023 position, both by expressly recognizing PHVAR based images as potentially design patent eligible and by removing the longstanding requirement that design patent drawings include a physical display screen.
Law360 contacted Finnegan partner Elizabeth D. Ferrill for her insight on the new guidance. Beth said, “There is now this explicit recognition of the projected and holographic [augmented reality] and [virtual reality] designs. It is definitely a swing in the complete opposite direction of where the 2023 guidance was going.” Beth also emphasized that although the guidance broadens what may be claimed, it does not relax the substantive requirements for patentability. As she explained, “The design still has to go through the process. It still has to be shown to be novel and not obvious and [meet] all the other requirements. So, it's not like we're giving up those requirements.” She added, “We're just kind of cracking the door a little bit on and opening our minds a little bit to what could be protected.”
