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The rise of wearable technology

Wearable technology is being hailed as one of the ‘next big things’ for 2016. With the rise in popularity of wearable fitness trackers and the Apple Watch 2 rumoured for release as early as March, this could be the year that wearable technology finally makes its mark on the consumer. 

In an environment that often necessitates collaborations between technology companies and the fashion industry, wearable technology stakeholders must consider how best to protect their intellectual property. We outline some of the main considerations to be aware of. 

Patents

Patents protect how something works. The powerful 20 year monopoly rights granted by patents can be useful for businesses looking to protect their wearable products. In the UK, an invention which is new, involves an inventive step and is capable of industrial application will be patentable as long as it is not specifically excluded from patent protection. 

Prior art is an important consideration in the context of wearable technology. Thousands of patents have already been filed across the world in this sector resulting in a large archive of prior art. Similarly, patent applications may fall down on the "inventive step" requirement if the invention would be "obvious" to a person skilled in the art. From a practical point, developers should ensure that employees/partners are aware of the need for strict confidentiality around a new invention to avoid it becoming public and no longer fulfilling the "novelty" requirement. 

Aesthetic creations and computer programs are excluded from patent protection. Developers should distinguish between the patentable and non-patentable elements of their products to ensure they are only protecting what can, by law, be protected, thereby mitigating the risk of future revocation. 

Design rights

The merging of technology with fashion results in devices that are highly functional whilst still being aesthetically appealing. Registered and unregistered design rights are likely to become increasingly important in filling the gap left by the exclusion of "aesthetic creations" from patent protection. 

Registered designs in the UK or at European level confer a 25 year monopoly right in the design of a product and are therefore an attractive option for wearable devices. Registering designs will prevent a third party from using a design that does not create a different overall impression on the informed user. The "uniqueness" requirement for registered designs may however prove difficult to fulfil in the context of wearable technology. 

At a European level, a design may also automatically be protected by Unregistered Community Design (UCD). Whilst UCD protection only lasts for three years, it does extend to protecting aesthetic features of a product such as patterns. In comparison, UK unregistered design lasts for 10 years but is arguably less relevant to wearable technology, protecting only the shape and configuration of an article and not the more intricate design elements.

Copyright

Software is a key element of wearable devices but may not always be protectable by way of patents. The software in wearable devices will however be protected by copyright. Copyright is an automatic right which lasts for 70 years and protects against unauthorised copying of the software. 

Conversely, it is important to avoid the risk of software developed for a wearable device infringing any third party copyright. Providers should consider conducting searches to ascertain whether any open source licences are complied with and to confirm that no third party code is infringed. 

Collaborations and ownership of IP

Many wearable devices are the result of collaborations between technology and fashion companies.  It is important that ownership structures are solid and clear to avoid later disputes as to ownership. A written collaboration agreement should be put in place dealing with ownership of both existing IP owned by the parties and any IP jointly developed.
 
Joint ownership of IP can be a minefield when it comes to exploiting those rights further. For example, the consent of all owners is usually required to license IP rights. Developers may want to consider whether it is appropriate for one party to retain the IP, with a wide-ranging licence granted to the other party to cover all necessary uses. 

What next?

The combination of design and technology means that businesses developing wearable technology must consider a combination of IP rights to protect their products, both registered and unregistered. Careful consideration should also be given to the appropriate ownership structure. 

With this sector in relative infancy, it will be interesting to see how the industry develops and how the courts develop IP law to keep up with developments in wearables.

Contributors: Emma Fox, Asima Rana

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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