Virtual reality (“VR”) and augmented reality (“AR”) technologies are rapidly maturing. Companies like Facebook and Microsoft are capitalizing on these technologies and actively releasing products to consumers. Both companies’ products blur the line between the real world and the virtual world. The blurring of this line presents novel questions regarding the protection of digital intellectual property that exists solely within the virtual world.

One such question is whether design patent protection will be available to three-dimensional digital models, models of real-world items that are digitally reproduced in the virtual world. To receive design patent protection, 35 U.S.C. § 171 requires, inter alia, that the subject matter be an “article of manufacture.” Based on existing precedent from the U.S. Court of Appeals for the Federal Circuit, it appears the court is reluctant to expand design patent protection to three-dimensional digital models. This Comment argues that the apparent reluctance of the Federal Circuit to expand intellectual property protections to three-dimensional digital models, as signaled in its recent decisions in In re Nuijten and ClearCorrect Operating, LLC v. International Trade Commission, is at odds with design patent’s § 171.

This Comment analyzes § 171 and its broad interpretation by the Federal Circuit’s predecessor, the Court of Customs and Patent Appeals (CCPA). After, the Comment contends that the Federal Circuit’s current trend deviates from the CCPA’s precedent and argues that the court should return to the broad interpretation of § 171. This broad interpretation would provide design patent protection to three-dimensional digital models present in VR and AR worlds.