When Robots Say "Enjoy Your Stay:" Patenting AI Solutions to Enhance Guest Experiences
By Jeremy Kriegel Partner, Marshall, Gerstein & Borun LLP | July 19, 2020
Technology alone will not bring guests back, but it will be a key component. Amenities that instill confidence, build trust, and contribute to compelling experiences will be the hallmarks of successful post-COVID brands. As hotels develop new amenities, or adapt existing ones, look for opportunities to obtain intellectual property (IP) protection.
As Warren Buffett said, "we want the moat widened every year. That doesn't necessarily mean the profit will be more this year than it was last year because it won't sometimes. However, if the moat is widened every year, the business will do very well." Transcript, Berkshire Hathaway 2000 Annual Meeting. IP is essential to moat-building.
IP protection may include utility patents, design patents, trademarks, copyrights and trade secrets. These can help protect a hotel's differentiating attributes.
"All brands have to create their own ecosystem that extends across all media-social, digital and traditional," says Patrick Hanlon, Founder and CEO, PrimalBranding.CO/Thinktopia and author of Primal Branding, required reading for a growing number of well-known brands. There is a great deal more to successful branding than using style guides to ensure consistency. According to Hanlon, "continuity is the last refuge of the unimaginative." "The objective is to create a community that becomes so passionate about your success that they create it themselves."
Hanlon identifies three pillars to the customer journey: Information, Experience and Connectivity. Information can include a brand's website, its social media feed, print advertising, outdoor boards and signage, radio and television advertisements, and the like. Experience can include both online and physical environments. The goal is to maximize the likelihood of personal engagements that garner positive guest satisfaction, because satisfied guests are more likely to interact with their peers and share recommendations within their networks, compounding ROI for the acquisition cost of a customer.
Connectivity involves fostering the shared interaction among a brand's community of guests, essentially nurturing the adoption of the various customs, rituals, icons, tools and language that foster a connection guests associate exclusively with one source.
The number of patent filings per year related to artificial intelligence, or "AI," is growing exponentially. According to a recent survey by Immunis of over 450,000 patent filings in the last five years having AI-related techniques as dominant portions of the disclosure, 29% have been directed to computer vision, augmented reality, or other visual technology, 24% to machine learning, 15% to neural networks, 12% to wireless transactions, 11% to payment transactions, 5% to health and 4% to speech recognition. Sanjay Dubey, Immunis' VP of Sales, says "AI has tremendous application in hospitality management, from collecting customer feedback, answering customer questions, to robotic delivery of food."
One organization whose members focus on developing technology for the hospitality, retail and transportation industries is AVIXA, the AudioVisual Integrated Experience Association. According to Joe Lloyd, AVIXA's Senior Director of Communication, "we are not going back to where we were before COVID-19. How do we go forward? What does this look like? Touch pads, touchless light switches. Remotes."
Display technologies like LED and LCD screens, already growing in prevalence, will likely play an even more important role in how hotels, cruise ships, restaurants, casinos, museums, theatres and other entertainment venues, transportation hubs and vehicles interact with visitors. IP rights can protect how the guest's experience on those screens, both large-panels and mobile devices, inures to the brand's benefit. For instance, novel and non-obvious graphical user interfaces can be protected by U.S. design patents, which have a term of 15 years.
Utility patents are a form of IP protection for machines, processes and articles of manufacture. When considering what developments might be eligible for utility patent protection, look for technical problems that had to be solved. If your team came up with a creative solution that no one had devised before, there is a decent probability that utility patent protection is available.
When you decide your strategy should include seeking patent protection for AI-related inventions, keep in mind that software-related inventions pose particular challenges. Federal court decisions and the U.S. Patent & Trademark Office (USPTO) provide guidance as to how to determine whether a computer software-related invention is merely an abstract idea (and therefore ineligible for patent protection), or whether the invention is "significantly more" than an abstract idea (and thus patent-eligible). But even with such guidance, this is an unsettled, ever-changing area of patent law.
Inventions likely to raise a patent examiner's eyebrow as to patent eligibility include those directed to (a) mathematical concepts, i.e., mathematical relationships, formulas, equations, algorithms, and calculations; (b) methods of organizing human activity, e.g. fundamental economic practices or principles, commercial or legal interactions, and managing personal behavior, relationships, or interactions between people; and (c) mental processes, i.e., concepts performed in the human mind, including observations, evaluations, judgments, and opinions. USPTO October 2019 Patent Eligibility Guidance Update.
Given the uncertainty surrounding patentability of software-related inventions, patent applicants should be mindful that applications in this sector can be more complex, take longer to work their way through the USPTO, and resulting patents can be more vulnerable to third party challenges than patents in other technical pursuits. However, these difficulties are not necessarily insurmountable. Skilled IP professionals can be valuable team members, serving as architects to design and implement a nuanced patent strategy that complements your brand's efforts in developing technology to enhance the guest experience.
Steven Grant, Director of the University of Florida College of Design, Construction and Planning's Themed Environment Integration Program, based in Orlando, has an exemplary appreciation of IP in the hospitality sector. Grant observes that IP's "value depends on how many platforms you have to use it." "IP is a big deal in our business." Indeed, Grant recognizes that "a corporation itself is an intellectual property asset."
Just as hotel rooms, lobbies, swimming pools, ballrooms, gaming areas and workout spaces need to be refreshed periodically, Grant cautions that "IP changes over time. Value changes." Companies may even acquire IP from third parties to help them adapt with the times. This can be done through licenses or outright assignments.
When consumers look at their smartphones, they see several screens full of apps. Each app icon both represents and serves as a virtual gateway to a different ecosystem. The consumer's experience while using an app can be more important than how a guest is greeted in the lobby or on telephone calls. Bill Schlough, Senior VP and CIO for the San Francisco Giants, recognizes that the team's "fans consume the game outside the ballpark more and more on their mobile devices, and less and less on big-screen tv's." Fans now demand "bite size consumption. Highlights. Moments. They've got to be entertained in multiple ways at the same time." The manner in which smartphone apps assist consumers when they engage in their surroundings, while providing ready access to easily viewable content, will likely become more prevalent in a post-COVID world.
According to Grant, a notable use of digital technology to enhance guest enjoyment of experiences in themed environments that will be critical post-COVID is the "virtual queue-give them a number, notify them when it's time to come to the attraction. We're going to have to have that going forward, because we can't have that two-hour crowd of people anymore." Schlough offers that with fewer (or perhaps no) fans in the stands of sporting venues, there is practically unrestricted freedom of camera placement within a stadium. Augmented reality (AR) or virtual reality (VR), already of growing interest in professional sports pre-COVID, can be vastly improved with additional camera angles. "The end game for AR/VR is volumetric video-- set up enough cameras and stitch them together, so you can watch from any vantage point you want."
Both Grant and Hanlon emphasize that for the consumer, it is the experience that is paramount. "When you have a website, don't immediately offer me a discount, because you are immediately making it a transaction, not an experience," says Hanlon. Technology can help tell your story, creating ideal occasions to engage guests. Innovations that help accomplish this goal would be sensible candidates for which to consider seeking IP protection.
While there are certainly privacy considerations to keep in mind, such as the European General Data Protection Regulation (GDPR), AI offers opportunities to less-obtrusively obtain actionable intelligence about consumer preferences and trends. Machine learning can be used to optimize solutions for practical applications like energy savings, crowd control, improved traffic flow, increased safety and efficacy of fire early-warning and suppression systems, plumbing, or HVAC systems, more efficient or sterile food preparation, delivery and waste disposal, to name a few.
Other areas where hotels might consider investments that can potentially benefit from AI include upgrades to interaction with in-room audio-visual equipment, improved hygienic housekeeping operations, concierge services, security, reservations, car rental services, ride-hailing, tour arrangements, restaurant and entertainment reservations, event planning and airline flight status monitoring. Patent protection is worth considering for inventions that result in differentiatable service improvements to any of these important hotel functions.
Data-driven results can be transformed from a digital or virtual format into tangible real-world, physical modifications, such as equipment adjustments, manipulation of window shade position, room lighting or door locks. These crossovers are often indicative of software-related inventions advancing into the realm of patent eligibility. Synergistic performance benefit is another earmark of potential patentability. In assessing patent eligibility, the USPTO and federal courts consider such attributes as indicators an invention presents significantly more than an abstract idea.
Clearing the patent eligibility hurdle is not the end of the race. To be patentable, an invention must also be new (or "novel") and not obvious to a person of ordinary skill in the technical discipline (or "art") to which the invention is directed. With the growing number of AI-related patent filings, patent examiners and competitors seeking to invalidate patents have an ever-expanding source of "prior art" to point to in order to show an invention, even if not identically found, would have been obvious as of the patent application's filing date.
Evidence of commercial success (so long as a causal nexus is established between what is claimed as the invention and the successful sales), industry praise, long-felt but unresolved need that is met by an invention, skepticism by experts, or unexpected results, can be useful in overcoming a finding of obviousness. These are collectively referred to as secondary considerations of non-obviousness, and thought should be given to collecting and documenting these during the design and development process and beyond, and sharing them with IP counsel.
Wherever technology is used to enhance a guest's experience, there is likely to be a positive correlation between the cost of that technology and increased guest loyalty. IP protection can help to exclude competitors from riding your coattails. While AI poses challenges when it comes to patentability, graphical user interface design patents and physical manifestations of AI-derived data can provide effective solutions for those in the hospitality industry seeking new ways to engage their guests in a post-COVID world.
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 authors and are not to be attributed to Marshall, Gerstein & Borun LLP or any of its former, present or future clients.
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