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Wearable technology brings together high-performance materials, high-technology components, and aesthetically and pleasing sensory features. To achieve successful products in this fast-paced market, organizations make substantial investments in design, research, and development. But the benefits of this investment can be easily eroded by cheaply made copycats. Strategic companies stay ahead of the risk by understanding the intellectual property (“IP”) rights that are most pertinent to their products and selecting the most appropriate layers of protection to meet business needs.
Utility patents protect technical inventions and give the owner of the patent the right to exclude others from making, using, offering for sale, selling, or importing the invention. To obtain a patent, an applicant files an application with the U.S. Patent and Trademark Office (“PTO”) providing the needed technical background to understand the invention, which is defined in the claims. The PTO examines the application via a back-and-forth with the applicant to ensure the claims meet statutory requirements. This process is called “patent prosecution.” Once granted, a patent is valid for twenty years from its filing date.
A patent can be used in tactical ways that advance business needs. For example, it can be enforced against suspected infringers in court, at the U.S. International Trade Commission to block imports, as a revenue stream via licensing, or as proof of a valid concept to investors. Given their value and versatility, utility patents are usually the foundation of a robust IP portfolio.
"The earlier you can think through your intellectual property strategy, the better"
Utility patents, however, do not grant a right to practice the invention. To freely make or sell a product, a company must consider whether there may be third-party owned patents covering any aspects of their product. Freedom-to-operate analyses can identify potential pitfalls and are also part of a healthy IP strategy.
Being aesthetically pleasing is a key requirement in wearable technology. Design patents protect an article’s appearance. The PTO also examines design patent applications. With utility patents, the words of the claims define the invention, but with design patents, the invention is defined in terms of the figures that depict how an article looks. A design patent is valid for 15 years from the date of the patent grant, and it allows the owner to block others from infringing the patented right. An example of a fabric design patent looks as follows:
Trademark and Trade Dress
Trademark and trade dress registrations are designed to protect the source of goods. A trademark can be a word, phrase, symbol or design, or even a smell that identifies and distinguishes the source of goods of one party from those of another. Think of the LV Louis Vuitton logo, for example (Reg. No. 5692076). Trade dress protects the overall look or appearance of a product or service. Think here of red-soled Louboutin pumps (Reg. No. 3361597). Trademark and trade dress registrations must be used in connection with the applicant’s own product or service (or proposed product or service). These registrations can be used to block copycats from benefitting from hard-won goodwill in the marketplace. Thinking about trademark and trade dress protection upfront is essential—before investing time, effort, and money into developing a brand that may not be registrable or that someone else has already obtained. Each form of protection has a ten-year term and can be renewed as long as they are being used in commerce.
Copyrights protect “original works of authorship,” including pictorial, graphic, sculptural, and audiovisual creations. As soon as a work of authorship is created, there are certain common-law rights vested in that work, but federal registration of the work at the U.S. Copyright Office provides additional benefits. The term of copyright for work created on or after January 1, 1978, is the life of the author plus 70 years. In terms of wearable technology, some aspects of a design can be copyrightable—for example, intricate lace and embroidery design (Reg. No. VA 1-236-387 for a Lace Tunic). Strategic companies often layer copyright protection with design patents or trade dress protection to ensure their product is adequately covered.
Trade secrets protect information that imparts actual or potential economic or business advantage to the company because it is secret, and not known outside of the company. Technical or engineering information, business, and financial information, business plans, budgets, customer and supplier lists, internal marketing data, products and services currently under development, or anything else that makes the “secret sauce” of a company’s product, can all qualify for trade secret protection. Provided the appropriate safeguards are in place, a trade secret can theoretically last forever. Once the secret is disclosed, intentionally or inadvertently, however, protection under this form ceases. If the secret was obtained through unlawful means, a misappropriation action could be appropriate. Physical and electronic security measures, employee training, and non-disclosure agreements all are part of strong trade secret policy.
Use Intellectual Property Strategically
The earlier you can think through your intellectual property strategy, the better. Use experts to help you consider your short-term and long-term goals to map out a plan that is cost-effective and meets your organization’s needs at every step of the way. Layer up to protect yourself smartly.
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