Friday, May 26, 2017

Design Patents & Wearable Devices

Wearable devices for monitoring health, wellness, and fitness comprise a rapidly growing industry that many outdoors and athletic companies are capitalizing on.  For example, a quick look at the USPTO patent database shows that nearly 5500 utility patents mentioning the term wearable device have issued since the beginning of 2016.
So if you are developing a wearable device or looking to incorporate smart technology into your outdoor or athletic apparel or equipment, how can you protect your intellectual property in light of the increasingly crowded wearable device space?  Below we outline a few possible approaches that may help secure patent rights for wearable/smart devices in the outdoor and athletic industries.
First, consider filing a large omnibus style application that includes description of multiple aspects of your invention.  For example, the specification could include description of the hardware/structure of the wearable device as well as the structure of the wearable device incorporated into various user articles (such as wristbands, shirts, or shoes).  The specification could also include description of the functionality and controls of the wearable device, the user interfaces of the wearable device, and the methods of manufacturing the wearable device and/or incorporation into a suitable user article.  The different aspects of the invention may be covered in separate claim sets, divisionals, continuations, and/or continuations-in-part.  This approach may allow overlap between the different aspects of the inventions to support more narrow claims down the road, should relevant art be cited during examination of the patent application.  Additionally, including hardware and controls together in the same description will ensure that any software-implemented inventions are tied to hardware, limiting the chances the application may receive an abstract-idea based rejection.
Second, be sure to include details relating to any specific adjustments that were made to the wearable device to allow it to be incorporated into a given article.  For example, a wearable device that includes a heart rate monitor may be well covered in the art, but adjustments to the heart rate monitor (or processing of the data obtained by the heart rate monitor) that were made to allow the monitor to be used in a hat or a pair of bicycle shorts may not be well covered, for example.  Further to this end, include specific improvements to the wearable device functionality or user experience, such as adjustments to the wearable device that enable power savings.  While such adjustments may seem on their face to be merely optimizing or cost-saving, they may be points of novelty that can help carve out space in the crowded wearable device field.
Finally, take a coordinated approach to filing utility and design applications.  Many aspects of a wearable device can be covered by a design patent, including the shape of the device, placement of the wearable device on an article, stitching used to secure the wearable device to an article, and even user interfaces displayed on the wearable device or a communicatively coupled computing device.  As design patents to user interfaces are a relatively new development, the field is not as crowded as that of utility patents, and the allowance rate for user interface design patents is relatively high, particularly for animated user interfaces.
These are just a few strategies that may be employed to help secure intellectual property rights for a wearable device.  If you are considering adopting wearable/smart devices into one of your products, consider some of these smart strategies, and hopefully you will begin to secure robust coverage for your devices.


Note that the views expressed herein do not represent the views of any law firm or client, and may not even represent the views of the author. This blog is NOT legal advice and is for informational purposes only. No attorney client relationship can be formed by reading this blog or using any of the information provided. The accuracy of the information provided has not been verified.