On 17 October 2017, Hogan Lovells, London hosted its annual ‘Intellectual Values’ seminar which this year focused on the ‘connected world’. Katie McConnell, a Counsel in our IPMT team, gave a snapshot of the issues arising from the brave new world of wearable technology. The seminar explored the IP challenges faced by market players – with a particular focus on patent litigation – as well as ways in which companies could break into the market.

Katie explained that the ‘wearable technology’ market, in the form of electronic technologies incorporated into clothing and accessories, is predicted to grow extensively in the next 5 years. Indeed, such growth and increased competition for customers is likely to increase the pressure on companies to get their IP protection strategy right.

In Katie’s view, the challenges raised by the rise in this technology are likely to mirror the pattern set by innovations in the mobile phone sector. In respect of patents, these challenges involve obstacles in obtaining initial patent protection – including amongst other things – the fact that wearable technology has brought about the convergence of technology from other fields, meaning that a large amount of the technology is already patented. Katie highlighted that even where patents are granted they are likely to be open to challenges from other players within the market. Nevertheless, Katie explained that this does not mean that companies should not attempt to protect their core technology; she stressed that a patent need not be ‘good’ to impact an opponent via strategic challenges.

For companies hoping to enter the market, Katie summarised some useful tips and/or options for navigating these challenges:

1. Build your own portfolio. This can be done be through either the organic development of technology, or the acquisition of a portfolio from a different company.
2. Take licences of a different company’s patents, to enable your company to move into the market.
3. Have a strategy for challenging competitors’ patents. This could involve creating a “fighting fund” which will allow you to protect your portfolio.
4. Be aware that some technologies will be standardised and, therefore, must be licenced to third parties on fair, reasonable and non-discriminatory (FRAND) terms. However, such licencing terms, are at the same time designed to maintain incentives for companies to innovate and participate in standardisation processes.

In Katie’s view, the collaboration of technology and a trusted brand is also crucial to legitimise a company’s offering in the wearable technology sector. She said companies should not overlook normal protection steps in the face of new technology. Continued awareness of the importance of trade mark, copyright and design right protection is therefore essential to an effective collective IP strategy. Wearable technology is a fast-moving industry that requires a well thought-out and efficient approach to IP protection.

If you would like to listen to the discussion please click here.