Wearable Computing—The Next Front in the Smartphone Wars?

by Quinn Emanuel Urquhart & Sullivan, LLP
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The rapidly shrinking size of computer components and the development of high-speed wireless signaling technologies have made mobile computing devices ubiquitous. Users can now access data and applications from virtually anywhere. A new generation of wearable computing devices seeks to make access to technology even easier. The wearable computing market is expected to reach $10 billion by 2016, according to the research firm Gartner.

A number of different wearable computing technologies have recently emerged, with three categories of devices being especially prominent: smartwatches, smart glasses, and wearable fitness devices. Initially, the smartphone will serve as the network hub for many wearable devices, which will display information communicated by the smartphone. The current major smartphone makers have already adopted the Bluetooth Low Energy standard, which enables users to connect peripherals, like smartwatches and smart glasses, to their smartphones to access their data connection to the internet. As a result, the battle over the wearable computing market could very well divide along similar lines as the smartphone wars, with devices powered by Google’s Android platform competing with devices utilizing Apple’s iOS or Microsoft’s Windows.

If the market for wearable computing devices expands as rapidly as predicted, incentives to litigate strategically will be present for players at all levels of the supply chain, from device manufacturers to chip makers. Much like the rise of the smartphone, the rise of wearable computing devices may generate a host of legal battles over intellectual property.

The Players

Among the tech giants, the wearable computing patent arms race is in full swing. Samsung, Apple, Google, Motorola Mobility, Microsoft, and HTC are actively seeking patent protection, acquiring patents to protect their valuable wearable computing technologies, and positioning themselves strategically to capture this emerging market. Anticipated wearable computing market entrants have also actively acquired smaller companies with wearable computing patent portfolios. For example, Jawbone recently acquired BodyMedia and its coveted biometric monitoring patent portfolio. Google acquired smartwatch developer WIMM Labs and its patents, and also a portfolio of smart glasses patents from Hon Hai.

Potential players with IP in the wearable computing space include at least the following companies:

Smart Glasses
• Google
• Samsung
• Apple
• Microsoft
• Vuzix
• Meta
• Lumus
• Recon Inst.
• Kopin Corp.
• Accenture
• Nikon
• Olympus
• Epson
• eMagin
• Carl Zeiss
• QD Laser
• Baidu
• Cal Tech

Smartwatches
• Samsung
• Sony
• Qualcomm
• Adidas
• HTC
• Google
• Apple
• IBM
• LG
• Asus
• Pebble
• Casio
• Comme Le Temps
• Hot
• Sonostar
• i'm SpA
• Martian
• Metawatch
• Rearden Tech

Wristbands/Fitness
• Jawbone
• Adidas
• Nike
• Fitbit Inc.
• Abbott Labs
• Medtronic
• Garmin
• Polar
• Suunto
• Leap Motion
• Thalmic Lab
• Bionym
• Weartech

Chips
• Broadcom
• Qualcomm
• IBM
• ST Micro
• MediaTek
• Marvell
• IBM
• ARM
• Intel
• AMD
• TI
• GreenPeak
• Himax
• Silver Spring
• Sensus USA
• Streetline
• InvenSense
• Alien Tech.
• Washington

Smart Glasses

Google Glass has attracted the most attention in the smart glasses category. In this exciting category, smart glasses are expected to augment reality, provide real-time information to consumers about their surroundings, and enable quicker and more seamless communications. Think of a world where your phone lets you know the name of the person whose name you should remember, and where people can avoid constantly turning to look down at their phones during meetings.

With Google Glass, consumers can keep their heads up and stay connected to reality while taking pictures, reading emails, surfing the Internet, following GPS navigation, and controlling the device through voice-activated and possibly gesture-based commands. While there are rumors of similar products from Microsoft and Samsung—but no public announcements—there are also a variety of other potential players, including Vunix with its M100 smart glasses, Recon Instruments’ Jet sunglasses, which display fitness and map information and are designed for triathlon athletes, and Meta’s SpaceGlasses, which feature two projection screens instead of one. Currently, the first round of glass products are all expected to ship to consumers in 2014.

Smartwatches

Among the tech giants, Samsung and Sony have taken the lead and recent headlines with their respective releases of the Galaxy Gear smartwatch and the Sony SmartWatch MN2.

Users receive emails, texts, and phone calls right on their wrist. By keeping the smartphone in the user’s pocket for basic tasks like reading emails, the smartphones battery life is saved. Smartphone-integrated watches have been released, announced, or rumored to be in development, by Samsung (Galaxy Gear), Sony (SmartWatch MN2), Apple, Google, and a multitude of start-ups, including Kickstarter-funded Pebble Technology and a spinoff of the Fossil watch brand called MetaWatch.

Health Monitoring Wristbands

Other companies are producing popular health-monitoring wristbands and apps, such as Jawbone (UP), Adidas (miCoach), Fitbit (Flex), and Nike (FuelBand). It’s possible that the smartwatch and wristband markets will merge over time, as the health wristbands develop deeper smartphone integration, and as the smartwatches include more health monitoring features. For example, Adidas recently announced a miCoach Fitness Smartwatch. Similarly, the Pebble smartwatch, announced in November that it will incorporate fitness monitoring into its next generation of smartwatch technology, and Samsung’s Galaxy Gear already contains health monitoring functionality through its S Health tracking app.

Chip Makers

Because Bluetooth technology enables easy, low-power connectivity between Android and iOS phones with wearable computing accessories, some segments of the market may have low barriers to entry and be ripe for startup innovation. Recently the CEO of chip maker Broadcom explained that, “There are two companies that make the bulk of smartphones today. But there are potentially thousands and thousands of little companies that can make wearables.” “These may be watches, rings, dog collars—these kinds of wearables can be made not for millions of dollars or hundreds of thousands of dollars, but for tens of thousands or even less. You could do it on your credit card.” Broadcom, and its fellow chip manufacturers Qualcomm, Intel, AMD, Marvell, Mediatek, ST Micro, and others, stand to benefit by offering chips and connectivity platforms which wearable startups can utilize. It is expected, particularly in the health and fitness space, that additional wearable accessories will continue to be developed, relying on the same basic operating system, Bluetooth, and communications platforms.

The Next Front

As wearable computing becomes a reality, will the tech giants learn from the smartphone wars or will they double down on their current strategies? It was Apple that famously declared “thermonuclear war” and set out to “destroy Android.” But far from destroying Android, today the most profitable handset vendor is Samsung, and Google’s Android is the top mobile operating system. As one commentator succinctly put it:

If Apple’s legal maneuvers were intended to curtail or at least slow down the growth of Android, then they have been an abject failure so far.

Despite the lack of demonstrable effects on the marketplace, however, litigation regarding smartphones, tablets, and other mobile computing devices continues at a brisk pace. There is little reason to doubt that the tech giants will continue to use all the tools at their disposal—including intellectual property—to secure their share of this growing market.

Patent litigation tends to follow the money—and wearable computing should be no exception. That means that, in addition to litigation between industry heavyweights, there is also likely to be intellectual property litigation regarding wearable devices brought by non-practicing entities (“NPEs”). An NPE named SportBrain has already sued Adidas, Fitbit, and Nike over a patent titled, “Integrating personal data capturing functionality into a portable computing device and a wireless communication device.” SportBrain apparently existed over a decade ago, but went out of business. But its patent remains. As Congress considers legislation directed to addressing NPE litigation, failed startups and other NPEs like SportBrain are sure to feature in the coming wearable computing patent wars.

Conclusion

The wearable device market has yet to fully launch—many products are only rumored, in beta testing, or announced for future launches. As the first major wave of devices reaches consumers in 2014, however, key industry players will be watching. If early sales are strong, competitors are likely to accelerate and enhance their own wearable device offerings. As in the smartphone wars, success, profits, and increased competition are catalysts for litigation. Non-practicing entities will send letters and file suit to seek licensing revenues, while industry participants may use their wearable devices patent portfolios to sue competitors or defend themselves.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Quinn Emanuel Urquhart & Sullivan, LLP | Attorney Advertising

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