Fashioning a Future for Wearable Technology
In today’s digital age when information is the economic engine of society, the emergence of wearable technology appears to be “the next big thing” in the consumer electronics market.1 Given that humans are clothed since birth, our use, need, and familiarity with clothing naturally makes it “the most universal of human-computer interfaces.”2 Accordingly, the market for wearable technology is predicted to reach $70 billion by 2025.3
Members of the tech and fashion industry are looking to capitalize on this new market category. For instance, Brooklyn-based smart fabric producer, Loomia,4 was selected as one of 32 finalists for this year’s LVMH Innovation Award.5 There have also been collaborations between major tech and clothing companies, such as Project Jacquard, a smart denim jacket created by Google and Levi’s,6 and a smart shirt created by Ralph Lauren and OMSignal.7
While the fashion industry has struggled to carve out a distinct area of legal protection for clothing simpliciter,8 wearables introduce new features that set it apart from traditional clothing. In particular, smart clothing represents the novel integration of new fibers with existing textiles to enhance the functional capacity of clothing. This development in wearable technology provides unique opportunities to strengthen legal protection for apparel.
While functionality automatically excludes protection for clothing under copyright,9 the same feature can be leveraged in another area of intellectual property law: patents. Patent law covers functional items, but it traditionally presented a high threshold for protection to apparel; The claimed subject matter is required to be (1) a process, machine, manufacture, composition of matter, or any new and useful improvement, (2) novel, and (3) non-obvious.10 Furthermore, the time and expense of filing a patent could be prohibitive with seasonal fashion trends.
However, patents may become increasingly applicable within the context of the longer-term functionality that smart textiles provide. Consider Uniqlo’s patented HEATTECH fabric, perhaps the earliest example of a smart textile that has obtained commercial success. Launched in 2003, this fabric has been used to produce clothing lines for men, women, and children11 and continues to attract consumers today. The longevity of Uniqlo’s HEATTECH products illustrates the benefits that patent protection can provide for innovative developments in apparel. Google’s pending patent for a “conductive thread configured to be woven into an interactive textile”12 and its existing patent for attaching electronic components to interactive textiles13 foreshadows its efforts to pursue a similar strategy in the developing wearables market.
The wide-ranging applicability for discrete components of wearable technology places patents at the confluence of fashion and technology. As with other forms of IP, working with patents will require careful consideration to ownership and assignment between employers and their employees. Like Uniqlo, securing a patent can also facilitate a first-mover advantage into niche wearable markets. The numerous possibilities for wearable technology coupled with patent protection present a unique opportunity for fashion and tech to innovate, commercialize, and add value to the lives of consumers everywhere. Without a “precursor to a full-scale wearable computer platform,”14 there’s no telling what a wearable future will hold.
See Worldwide Wearables Market to Nearly Double by 2021, According to IDC, IDC (Jun. 21, 2017), https://www.idc.com/getdoc.jsp?containerId=prUS42818517 [https://perma.cc/4JV3-4LFD] [hereinafter IDC].↩
Diana Marculescu et al., Electronic Textiles: A Platform for Pervasive Computing, 91:12 Proceedings of the IEEE 1995, 1996 (2003).↩
IDC, supra note 1.↩
Viva Technology 2017, 32 finalist startups for LVMH Innovation Award, LVMH (May 24, 2017), https://www.lvmh.com/news-documents/news/viva-technology-2017-32-finalist-startups-for-lvmh-innovation-award/ [https://perma.cc/YGR6-WCUG].↩
Lance Ulanoff, Ralph Lauren Testing Fitness Tracking Shirt at U.S. Open, Mashable (Aug. 25, 2014), http://mashable.com/2014/08/25/ralph-lauren-smart-t-shirt/#ADykBARRJ5qg [https://perma.cc/AUS9-HFZZ].↩
Susan Scafidi & Narcisco Rodriguez, Fashion Designers Need Strong Legal Protection for Their Clothing, New York Times (Oct, 22, 2015), https://www.nytimes.com/roomfordebate/2014/09/07/who-owns-fashion/fashion-designers-need-strong-legal-protection-for-their-clothing [https://perma.cc/PR5D-U5ZN].↩
See Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S __ (2017).↩
35 U.S.C. §§ 101-103 (2017).↩
UNIQLO Celebrates 10th Anniversary of HEATTECH With Wider Lineup and New Babies Line, Fast Retailing (Sept. 26, 2012), http://www.fastretailing.com/eng/group/news/1209261530.html [https://perma.cc/Q6V4-BQYA].↩
Conductive Thread for Interactive Textiles, Google Patents (2017), https://patents.google.com/patent/US20160284436A1/en?q=smart&q=textiles&q=D03D1%2f0088&assignee=Google+Inc [https://perma.cc/VFH8-6LH5].↩
Attaching Electronic Components to Interactive Textiles, Google Patents (2017), https://patents.google.com/patent/US20160345638A1/en?q=smart&q=textiles&page=8 [https://perma.cc/33UK-ZJ24].↩
Isabel Pedersen, Are Wearables Really Ready to Wear?, 33:2 IEEE Technology and Society Magazine 16, 16-17 (2014).↩