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Intellectual property and wearable technology

Companies of all sizes have been investing significantly in wearable technology eg, smartwatches, fitness-tracking bands, etc.  Given the amount of money involved, it makes a whole lot of sense to look at protecting your investment.

Protecting the intellectual property (IP) of wearable devices can be something of a minefield for this particular type of technology.  Here, we look at some practical steps you can take to protect you technology, designs and your brand.

A quick overview of IP protection

Copyright is a form of protection which is applied automatically to all original works of authorship. Although it is probably best associated with the arts and entertainment world, it can and does apply in the world of business too.

Trademark

Trademarks protect symbols associated with your brand, such as logos.  In the UK, they are issued in categories, with the result that two companies could, in principle, use the same trademark as long as they were in different industries so as to avoid confusion. 

They are also on a “use-them-or-lose-them” basis. With wearable technology, this will often include different versions of the branding for both the device itself and the accompanying app, so it's important to ensure you have trademark protection for both versions.

Designs

In the world of technology, the functionality and appearance of a graphical user interface can be essential to the identity and success of a technology based product.

Where wearable technology is concerned, the outer appearance can be even more crucial, so it's important for manufacturers to register the designs of their product if it has a unique and distinctive appearance.

By registering a design, you protect the 'individual character' of the appearance of part or the entire product, which can include its texture, materials or shape.  However, you can't register a design where the appearance of a product is dictated by its technical function where certain features may be needed to fit a different product. For example, a smart watch strap and its connection to a charging device can't be protected, but the distinctive shape of the strap can be protected.

Overall, however, registered designs can be a very useful tool for protecting products which are basically part clothing and part technology. 

Patent

Patent is similar to copyright in that it protects original inventions.  The key word is "original". The invention has to be genuinely innovative to be granted patent protection; it also has to be feasible in the real world.  There is one huge difference between patent and copyright in that inventors have to apply for a patent, whereas copyright is granted automatically.

Where wearable technology is concerned, certain issues require careful consideration. For example, patents cannot be used to protect the unique appearance of a product (this is covered by registering the design).  However, certain functions of the product like a sensor that monitors a specific action (eg, a step counter or a heart rate monitor) can be protected by a patent if these sensors are an innovation in technology or an improvement to what already exists in the market.

Most wearable tech devices rely on the ability to communicate with a separate device like a tablet or smartphone, which often requires the use of an app to communicate with the wearable device. In cases like these, the wearable device and the app will need to be protected by a patent separately in order to stop other manufacturers from replicating certain features of the app. An app can only be protected if it is deemed to solve a technical problem.

As technology evolves in the future, there will be instances where technology will be invasive to the human body and this will create problems for manufacturers wanting to patent their devices as they can only abide by regulations under existing law. There is a danger that technology will advance faster than legislation, leaving manufacturers with very few options as they wait for the law to catch up.  

The importance of IP

If you are going to look for any sort of business investment, then having rock-solid IP protection is a huge advantage.  By protecting the IP rights of your innovation in technology, it gives you a competitive edge over similar products in the market place and helps to increase the value of your product.  Because of this, it is very advisable to consider IP every step of the way and, ideally to think ahead.  For example, before you get too heavily invested in branding and marketing, check that preferred names and logos are actually available. 

Check for existing patents and registered designs at an early stage so that if you do come up against a legal brick wall, you can work out a way to deal with it, for example you may be able to buy or licence the IP or find a legal way to work around it. 

File your own applications as early as possible and certainly before there is any form of public disclosure.  If you must disclose any details of your IP to third parties, make sure they sign a non-disclosure agreement.

Author: Fletcher Day

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. 

Published on 3rd May 2017
(Last updated 21st March 2018)

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