By the time you arrive at your desk, your smart ring may already have analysed your sleep, your watch may have recorded your heart rate and blood oxygen levels, and your connected glasses may be placing digital information directly in your field of view. Each appears to be a single consumer product, yet each may incorporate multiple layers of technology, design, software, data and brand value.
The rapid development of the wearable and connected-fitness sector illustrates how significant these layers have become from an intellectual property perspective. They show that commercial value may be distributed across technology, product design, software, data and brand value, rather than concentrated in the physical device alone.
For businesses developing connected products, the IP strategy should account for each source of value from the outset.
Protecting the technology inside the product
Patents will often be central where a wearable incorporates new technical functionality. South African patent law permits protection for inventions that are new, involve an inventive step and are capable of being used or applied in trade, industry or agriculture.
Software-based innovation requires more careful analysis. Although the Patents Act excludes a computer program from patentability to the extent that the invention relates to the program “as such”, a connected device may still incorporate potentially patentable innovation in its sensors, electronic systems, measurement methods, communication between components or other technical functionality surrounding the software.
The commercial life of these inventions may also extend across several generations of the same product. A sensor arrangement or monitoring system developed for one smartwatch may remain relevant as later versions are introduced, making the underlying technology considerably more valuable than the lifespan of a particular model might suggest.
Protecting both form and function
South African design law provides a further layer of protection through the recognition of both aesthetic and functional registered designs.
An aesthetic design concerns features that appeal to and are judged by the eye, while a functional design concerns features of shape or configuration necessitated by the function the article is intended to perform.
A smart ring may therefore raise more than one design consideration. Its external appearance may warrant aesthetic design protection, while separate functional design protection may be available for qualifying features of shape or configuration that are necessitated by the function the article is intended to perform.
Patent and design rights may accordingly operate alongside one another, with each directed at a different aspect of the same product.
Software, interfaces and know-how
The digital elements of a connected product require separate consideration. South African copyright law recognises computer programs as copyright works, while other original material associated with the product may also qualify for protection where the statutory requirements are met.
Some commercially valuable aspects of a wearable may never be visible to the user. Algorithms, development processes, testing methodologies and technical know-how may instead require protection through confidentiality arrangements, contractual restrictions and controlled access.
Ownership should also be addressed at an early stage. Wearable products are often developed with contributions from software developers, engineers, designers, manufacturers and third-party technology providers. Clear contractual allocation of intellectual property rights becomes particularly important when the product is commercialised, licensed or introduced into additional markets.
The value generated after the sale
Wearable technology is distinctive in that the product may continue generating commercially valuable information long after it has been sold.
The underlying data generated by a wearable should not automatically be assumed to constitute intellectual property in itself. Depending on the circumstances, however, the software used to process it, qualifying compilations, proprietary analytical systems and confidential datasets may attract separate forms of legal protection.
Health and biometric information is treated as special person information under the Protection of Personal Information Act, while other information generated by a wearable may also constitute personal information. Any strategy involving the use, analysis, licensing or commercialisation of such information must therefore take account of the applicable data protection framework in addition to the IP rights concerned.
The growing value of information generated by wearable devices is one of the developments distinguishing connected consumer products from more traditional products, particularly as businesses explore opportunities involving analytics, product development, artificial intelligence and licensing.
Building protection around the product
Wearable technology illustrates a broader shift in modern product development. A single device may combine patentable technology, aesthetic and functional design, copyright, confidential know-how, trade marks and commercially valuable information within the same product ecosystem.
Effective protection is therefore unlikely to depend on a single IP right. Identifying the various sources of value at an early stage allows patents, registered designs, copyright, trade marks, confidentiality measures and commercial agreements to operate as complementary parts of a coherent IP portfolio.
For innovators developing connected products, a carefully structured portfolio can strengthen protection, support licensing and commercialisation, and preserve value as the technology develops across future product generations. Speaking to a patent and design attorney early in development, before a product is finalised or launched, is the most effective way to ensure that strategy is in place from the outset.
