The USPTO recently granted Sony Interactive Entertainment a patent on methods for influencing a gaming world (US 11,192,027). The invention in the patent was conceived during the development of a game called “Death Stranding” which features online worlds filled with characters controlled by people, that is humans, who can log in from across the world, that is the real world. The online worlds include cities surrounded by natural terrain, untouched by the characters. At least at first.
During gameplay, the Death Stranding online worlds exist independently from individual characters and are permanent, unlike many other games where a virtual world is tied to individual sessions of those characters. The characters are able to explore the natural terrain and form paths. The paths formed by a character of one player is reflected in the world experienced by other characters. This creates a feeling that the same online world, or metaverse, is actively and collectively being explored by people from across the real world.
Turning to the Sony patent, the claims are generally directed to systems and methods for influencing a gaming world of a video game. The claims recite cross-pollination of paths of characters via a cross-pollinating manager of a cloud gaming system. The patent seems to define cross-pollination as a way of updating different online worlds experienced by characters playing the game asynchronously. For example, if a character affects the online world of a game it is playing in, then the effect would be cross-pollinated across several of the online worlds of the game hosted by various servers. The claims recite that as a path is crossed more frequently by one or more characters, the path is “improved”. The patent even discloses bridges built by characters being cross-pollinated. This potentially sets Sony up to be a patent troll under a metaverse bridge. Sorry, couldn’t resist that joke.
As many patent practitioners painfully recall, a landmark Supreme Court case in 2014 carved out an exception to the principle that anything man made is patent eligible under US patent law. The Supreme Court said that inventions involving human activity performed by generic computers are ineligible. This case, Alice Corp., involved a series of patents directed to a computer system that serves as an intermediary for digital payments. This decision resulted in the invalidity of numerous patents and made obtaining software-related patents extra cumbersome.
One could argue, as the USPTO Examiner did during prosecution of the Sony patent, that traversing nature to create a path is human activity. In fact, we bipedals are pretty good at it. Further, the network of servers implementing the virtual paths could be seen as a generic computer. However, since the Alice Corp. decision, there have been numerous Federal Circuit cases that have created exceptions to the exception, thereby forming paths, if you will, for software patent applicants to arrive at an allowance.
The string of Federal Circuit cases prompted the USPTO to promulgate guidelines for its examiners to reference when analyzing patent applications. The guidelines state that one of the exceptions to the exception is when a claimed abstract idea is integrated into a practical application, then it is patent eligible. This was asserted by Sony’s attorneys and accepted by the Examiner.
The Sony patent tends to demonstrate that the patent eligibility analysis appears to have come full circle since the Alice Corp. decision. It is hard to believe that intermediary systems more resemble human activity than forming walking trails. There are arguments to be had about the practical applications of the two concepts, especially after being cooped up during a global pandemic.
Of course this patent has yet to face the scrutiny of judges, who are not bound by the USPTO guidance. While granted patents are not precedential, the highly publicized Sony patent could potentially inspire a wave of metaverse-type patent applications. The Supreme Court has not taken up a patent eligibility case since Alice Corp.
One of the more painful aspects of the Alice Corp. decision is the confusing analysis it handed down. Before this decision, inventions were considered eligible so long as they were man-made machines or somehow tied to man-made machines. The prior cases arose when methods or processes were claimed. In Alice Corp., the claims were largely directed to data processing systems, which the Court characterized as generic computers. As everyone knows, even generic computers not made by Apple are man-made machines. Thus, the Supreme Court kind of treated computers like they are not man-made. One might say that just simply implementing a human process on a computer is obvious and therefore not patentable under § 103. Unfortunately, that’s not what the Supreme Court said. Perhaps the Supreme Court foresaw the emergence of the metaverse and created a nebulous law to protect the metaverse from patent trolls who would charge a toll for crossing a bridge in the metaverse.
