Wearable Technology and the Law

by Manojna Yeluri

With the holiday season upon us, there’s a ton of gifting to do and a simple survey might reveal that smartwatches, fitness trackers and virtual reality headsets are pretty popular gift choices. This is wearable technology in its most accessible form yet, and the rising popularity of these forms of technology (and our reliance on them) merits a quick discussion on the legality, rights protection and socio-economic implications of these transformative devices.

What is wearable technology?

As the name suggests, wearable technology refers to devices that can be worn by a consumer, tracking the wearer’s health, fitness or some kind of sensorial experience. The idea is that these devices would help us monitor, facilitate or enhance daily tasks, activities and experiences. Funnily enough, when we think of wearable technology, we automatically associate it with smartwatches or augmented reality, although basic instances of it have been around for a long time and include wrist watches, pedometers and hearing aids. Today, wearable technology has assumed a bigger role in our lives and imaginations, pushing us to innovate further and develop devices that keep a track of our mental and physical health, monitor sensory changes and help us store visual and sensorial experiences.

How does the law fit in?

Like all inventions and technologies, wearable tech devices are subject to legal rights protection, although owing to the nature of their purposes, there is a little grey associated with their legal status. From an intellectual property perspective, wearable technology invokes a great deal of discussion in the realm of patent law. According to a LexInnova report, Microsoft, Phillips and Alphabet own the highest number of patent and patent applications in the wearable technology domain, with the highest number of patent applications being filed in the United States of America, China, Japan and Korea.

A major problem being faced while making wearable technology patent claims is determining the scope of the patent and the categorization of filing. These were discussed in the recently settled litigation suit Adidas filed against Under Armour and MapMyFitness for the infringement of multiple patents.

Besides patent claims, with so many competing technologies flooding the market, there have been countless cases of litigation on the basis of trademark violation, with apps, devices and technologies using interchangeable or similar looking/sounding brandmarks, that would undoubtedly cause a great deal of consumer confusion.

Is wearable technology protectable under the law?

At the core of wearable technology lies an understanding that the wearable devices themselves must be functional, accessible and aesthetically pleasing in form. The design of these devices thus involves an interplay between technologies that somehow also fits into the aesthetics of the consumer. One of the oldest debates plaguing the world of intellectual property rights has been that of form versus function, wherein the law extends protection to just one of these aspects, and never to a marriage of the two. Uncertainty around this principle accounts for the multiplicity of IP claims, with no one ever being completely sure of what law protects their device or invention.

With an increasing number of technology companies collaborating with design and fashion houses in an effort to create wearables, it is becoming more apparent that we need to revisit fundamental debates such as the form and function paradigm, which profoundly affects the protection and monetization of wearable technology.

Are there other concerns with wearables?

Since wearable technology often has access to our biological data, health statistics, and sometimes to our calendars and task lists, there has been a great deal of anxiety about these devices providing corporations and governments continual access to our personal data, and maybe even the ownership of it. In addition to data privacy concerns, there are also concerns regarding the ethical limitations to applying technology to enhance the physical body, especially if one were to look at assistive technologies for the differently abled, and how, in such situations, technological aids literally become part of the wearers’ bodies.

What’s the bottom line?

At this point, although wearable technology might seem like a great gifting idea, the implications of this movement are wide and far-reaching. In the era we live in, garments can track the biological data of a sleeping child, our moods can change the colours of our clothes and shoes, and we can organize our schedules on our wristwatches. It is definitely an exciting time, but it comes with the need to re-examine the rules and take the appropriate precautions while we can.

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