Riding The U.S. Patent System Roller Coaster

Patents play an ever-increasing role in theme park design and construction. When contemplating a new attraction, such as a roller coaster, design teams should understand that each system and sub-system, such as the brakes, restraints, track design, car design, seat design, acceleration systems, evacuation routes, water features (e.g., splashing or water cannons), sound effects, visual effects, crowd queueing (both actual and virtual), pass verification, loading and unloading, control systems, rider photos and souvenirs, pose a potential thicket of patent issues. Often these issues are the concern of the companies to whom development of the rides are outsourced, but patent litigation can lead to unavailability of vital components, cost overruns and delays. The use of virtual reality / augmented reality in theme park attractions expands the universe of patents of potential concern. Patents give their owners the right to exclude others from making, using or selling an invention for a limited period of time, but do not bestow on the owners the right to practice the invention themselves, as a third party may control patent rights to underlying technology necessary to practice the new invention.

Movies inspire theme park attractions, including seasonal temporary overlays, new rides, live action experiences, even entire villages or parks. Moviemaking has been an active source of patented technology for a century, such as Thomas Edison’s 1897 U.S. Patent 589,168 claiming an “apparatus for effecting by photography a representation, suitable for reproduction, of a scene including a moving object or objects,” patents on camera mounts, surround-sound and computer-generated imagery, to name just a few. As theme park designers consider ways to immerse visitors in environments that mimic the experiences of the characters and settings of the movies that inspire the attraction, often the same inventions needed to make the movie can be employed, or improved upon, in creating the ride or other attraction.

These improvements might themselves be patentable. Not every invention needs to be pioneering to deserve patent protection. So long as an invention is new (i.e., no one has previously disclosed the same invention), useful and would not have been obvious to a person of ordinary skill in the technology to which the invention relates, the criteria for patentability are satisfied.

The most common type of patent is a utility patent, which basically protects the way an invention works. Another type is a design patent, which protects the ornamental appearance of an article of manufacture, or basically, the way a product looks. A third type is a plant patent, which covers certain distinct and new varieties of plants, but represents a very small percentage of U.S. patents.

Design patents are increasing in popularity to protect displays with static or dynamic (animated) graphical user interfaces (GUIs), such as an app on a smartphone or smart watch, in a virtual reality headset or a projection on a monitor. Notably, images projected in mid-air or on the ground, such as holograms, are currently rather difficult to protect using design patents in the U.S., because U.S. design patents protect the ornamental design of a physical article of manufacture, which a transitory projection of an image itself lacks. This is where other forms of intellectual property protection, such as copyright or trademark, may be more applicable.

To the extent third parties, such as ride construction companies, control patent rights to technology to be implemented in new attractions, theme parks can consider requiring the construction companies to leverage those patent rights to limit the geographic territory in which the invention can be used, so that a given attraction can be the only one of its kind in a given region.

Theme park designers should consult with intellectual property counsel to help them navigate the myriad of potential patent issues in their projects, not only to steer clear of potential third party patents, but also to identify and protect potentially patentable inventions they develop during their creative process and development.

Jeremy R. Kriegel is a partner whose practice focuses on design and mechanical patent matters at the intellectual property law firm Marshall, Gerstein & Borun LLP. Jeremy prepares and prosecutes U.S. and foreign patents in a wide range of mechanical technologies and helps lead companies’ products to market by counseling on patent and trademark infringement, licensing, patent validity, right-to-make issues, and product marking. He can be contacted at jkriegel@marshallip.com or (312) 474-9561.

DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney. Views expressed are those of the author and are not to be attributed to Marshall, Gerstein & Borun LLP or any of its former, present or future clients.

Editor’s Note: Thanks to Jeremy Kriegel for today’s sponsored article! We have talked quite a bit about patents here at Theme Park University. It’s great to have a contributor from someone in the field. Thanks for the great content and insight!

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