In a fast changing market, even a couple of weeks can seem like an eternity. Consumer products may have an effective life span of a year or less before a new version comes out to replace the old version. While this is a sign of a healthy market, the speed can certainly cause some strains in other areas, including patent protection.

The average pendency at the USPTO for a utility patent application to become a granted patent is about two years. For a design application, the average pendency to grant is a little less at about twenty months. While an applicant can request a faster examination period (for a substantial fee), even that may take a year assuming the Examiner and Applicant can see eye-to-eye.

For the Oculus DK1, its design patent was granted in March of 2014, having spent only nine months at the USPTO. A link to that patent is here. A design patent is relatively narrow and a potential infringer would have to copy the look of the DK1 to potentially infringe on that patent.

Ironically, Oculus announced that the DK1 would be discontinued in February of 2014, a few weeks prior to receiving their granted patent. This situation highlights the speed at which the VR market is making technological progress. The Oculus DK1 never had a design patent granted during its lifespan on the market.

So is the patent still valuable even though the DK1 is no longer being sold? Yes. The patent prevents copycats from simply mirroring the DK1 HMD look and passing it off as their own.

To be sure, the design patent would theoretically be more valuable if it had been in force when the DK1 was on the market. It would be easier for Oculus to pin lost sales on an infringer and make them pay for more than just a royalty.

Will the USPTO be able to keep pace with the VR market? Likely not, given the amount of applications the USPTO reviews every year. Nine months, the length of time it took to get the Oculus patent, is really fast for the USPTO. Oculus ceasing DK1 production when the Dk1 was granted patent protection highlights the need for fast moving companies to consider paying the accelerated examination fee at the USPTO to get a patent faster. Even then, it might not be fast enough.