Smart health wearables are non-invasive electronic devices designed to be worn on a user’s body and collect the user’s data on various metrics relating to personal health and exercise – for example: steps, hear rate, blood pressure, glucose levels, oxygen saturation, skin temperature, calories burned etc.
Over the last decade, smart health wearables have transitioned from a fringe exercise accessory to a highly sought-after product, with many people currently using wearables to provide continuous real-time health monitoring in everyday life. As a result, the value of the market for such wearables has skyrocketed. According to Grand View Research, the global wearable technology market was valued at $26.8 billion in 2022. It is expected to grow at a compound annual growth rate of 25.7% from 2023 to 2030, with a revenue forecast in 2030 of $168.2 billion.
In view of this fast-growing market, it is vital that innovators in the wearable space take pro-active steps to protect their intellectual property as a means of obtaining investment, maintaining competitive edge, increasing market share, and maximising revenue. This article briefly discusses a few options for protecting intellectual property associated with smart health wearables in Europe.
Wearable devices are made up of numerous innovative features and as such can be protected using patents. Granted patents can be used to prevent third parties from making, using, distributing, importing, or selling an invention without the patent proprietor’s permission for the term of the patent, which is typically 20 years from filing.
Patents are territorial rights and must be filed on a country-by country basis depending on where protection is sought. In Europe, under the European Patent Convention (EPC), a single European patent application can be filed and prosecuted at the European Patent Office (EPO). Following grant, a European patent can then be validated in any of the EPC’s contracting states (https://www.epo.org/en/about-us/foundation/member-states). Alternatively, in an important new development in European patent law, a European patent with unitary effect (EP-UP) can also be requested For more information on the EP-UP, see our previous article: https://www.secerna.co.uk/insights/news/new-era-for-european-patent-law-as-unified-patent-system-takes-effect/.
From hardware developments (e.g., advancements in electrodes sensing biological parameters) to software developments in data processing algorithms, a patent application can be filed in respect of inventions associated with wearable devices. There are potential pitfalls to be considered when patenting software-related inventions in Europe. For example, computer programs ‘as such’ are excluded from patentability under the Article 52(3) of the EPC. However, it is worth noting that this exclusion does not apply to computer programs having so-called technical character.
Considering the technological advancement in the smart health wearables, many suggest that such wearables will soon play a diagnostic role in the medical and healthcare sector. Under Article 53(c) of the EPC, European patents shall not be granted in respect of “diagnostic methods practiced on the human or animal body”. However, devices used in diagnostic methods (e.g. wearables) are still patentable, even if the diagnostic methods themselves are not. For more information on the EPO’s exclusion of diagnostic methods, see our previous article “https://www.secerna.co.uk/insights/news/how-to-make-life-easier-at-the-epo-exclusion-of-diagnostic-methods/”.
As demonstrated by the extensive recent filing of European patent applications in this technology, wearable devices are full of potentially patentable technology. Whether for the purposes of enforcement, investment, or (cross)licensing, patents provide a valuable asset that can be used to protect your product and help achieve your commercial goal.
Registered Trade Marks
Wearable devices can also be protected using registered trade marks. Any sign (e.g., a word or logo) can potentially be registered as a trade mark, for a particular class of goods or services, to indicate the origin of a product and so distinguish it from other goods or services. This branding tool enables wearables to be readily distinguished from competitors, which helps goodwill and reputation to be built for a particular brand.
A registered trade mark can be maintained indefinitely (subject to renewal fee payments). However the brand protection conferred by such a trade mark is limited to the jurisdiction in which it was registered. Therefore, depending on a company’s branding strategy, any trade mark may have to be registered in multiple jurisdictions to cover all the desired markets. For example, for protection in the UK, a trade mark can be registered at the UK Intellectual Property Office (UKIPO); whereas for protection in the European Union, a trade mark can be registered at the European Union Intellectual Property Office (EUIPO).
In the rapidly expanding market of smart health wearables, registering a trade mark can be an excellent way to protect your brand and stop competitors benefiting from your trading reputation and goodwill.
Wearable devices can also be protected using registered designs. Registered design rights protect the appearance of - the whole or part of - a product based on lines, contours, colours, shape, texture, material or ornamentation of the product. A registered design must be new and considered to have individual character compared to other previous designs.
The protection conferred by a registered design is limited to the jurisdiction in which it was registered. Therefore, a design may have to be registered in multiple jurisdictions to cover a company’s desired markets. For example, for protection in the UK, a design can be registered at UK Intellectual Property Office; whereas for protection in the European Union, a Community design can be registered at the EU Intellectual Property Office. The maximum term of protection for EU and UK registered designs is 25 years.
As with all products worn by the end user, the appearance of smart health wearables is very important. Therefore registering a design to protect the appearance of your new wearable may be a quick, effective and low-cost way to prevent competitors from copying your aesthetic creation and maintain your edge in the market.
Considering the complexity of smart health wearables and the market’s value, the best approach to protect a particular product will likely involve a combination of the above intellectual property rights. Our attorneys at Secerna LLP are well-equipped to assist in the protection of your Intellectual Property rights in Europe.
Want to discuss your intellectual property with our skilled team? Do not hesitate to contact us at firstname.lastname@example.org.