In industries from fashion to pharma, companies are seeing potential in wearable technology.  Already commonplace are health trackers which will give you feedback on your heart rate, fitness, blood pressure, and stress responses.  Other items in development include solar clothes than can recharge your phone, bike helmets with a built in navigation system, smart socks that work out if your running style is causing injury, and a yoga outfit with embedded sensors which buzz when your posture is incorrect. Fashion applications have included a skirt which changes colour depending on the mood of the wearer, and a dress which can transmit live tweets.

Legal timebombs

There’s no doubt that there is enormous potential in wearable technology sector - investment bank Cowen forecasts that the category will be worth $170 billion by 2020.  But the nature of the products could leave companies open to legal timebombs.  Many devices capture and transmit information which could fall foul of data protection laws, and they are often the result of collaborations between fashion and tech companies which need carefully considered agreements in place. Olswang has noted a growing interest in this sector from its clients.  It says the first hurdle can be meeting the requirements for a patent.  “Certain things aren’t patentable, for example if it is purely aesthetic, because then it doesn’t have an innovative quality.  Also if it is a mere piece of software; or if it is a form of presenting information.  If it falls under those three clauses then it is not normally patentable,” says Kaisa Mattila, associate at Olswang.

Inventive step

To gain a patent a product has to demonstrate an inventive step, either in the use of a new material, an innovative concept, or new hardware.  It could also be inventive through the use of existing hardware incorporated in a wearable item, or a new way of using known hardware.  “Sometimes an inventive step is very subtle, it can be tricky to show that a particular piece of kit is inventive enough to be patentable,” says Mattila.

Many of the products currently heading to market have some aspect of capturing personal data and processing it by relaying it to some form of controller, and in these cases brands must comply with data privacy law. Privacy issues come into play with anything that records or processes data about a person, their movements and whereabouts; and data revealing details about an individual’s physical or mental health would be considered extremely sensitive.

“Privacy is most poignant in medical and health data.  In those devices it is extremely important that the data security aspect is robust and well controlled, that consumers know what is being measured and what is being done with that information. The moment there is a suggestion that it is being misused, public confidence will plummet,” says Mattila.

No one size fits all

According to Olswang there is no one size fits all solution as the Data Protection Act is a principle-based piece of legislation.  Instead it advocates a ‘privacy by design’ approach before launching any wearable technology product.  This needs to consider how you will capture data, gain consent, what you will do with the data, and where it will be stored.

Added to this, many of the designs evolve from a collaboration between the garment industry and the tech sector. Olswang says that parties need to agree on how the collaboration will be owned, and how they will manage joint ownership of IP rights.

Options  include a Special Purpose Vehicle, where intellectual property is jointly owned, but the product is owned by one legal entity; cross-licensing between the two parties; or assignment of foreground rights to the lead party, with the other paid a fee or royalty.