Wearable technology is not new. Innovative products such as smart watches and fitness bands have been on the market for some time. However, we are now seeing companies bring such ideas to pure fashion items. So welcome the Voltarii Timeless smart shoe designed by iShuu Technologies which, with the help of a smartphone app, can change colour or design at the users will.

Many fashion brands are well versed when it comes to trade marks, copyright, and design rights to protect their brands and designs. However, wearable technology is developing through inventions and inventions need and can be protected as patents. Normally reserved for pharmaceuticals, heavy industry manufacturing, transportation, and medical apparatus, patents are now taking centre stage in the fashion world. Indeed, a search of the European Patent Office database reveals approximately 1,500 patents worldwide in the name of Nike alone being published in 2015, many of which relate to clothing and footwear.

So, what can be protected and how do you get patent protection?

The invention must be new. Novelty will be lost if enough information about the invention has been given away to enable a third party to exploit the invention. It does not matter if anybody actually examined the invention in public – it is enough that it has simply been used in public. It is therefore important that employees and all relevant parties are aware of the importance of confidentiality and employment contracts and other agreements such as joint venture agreements and licences contain suitable terms in this regard.

Although an invention need not be an outstanding leap forward, it must be sufficiently innovative. This will be satisfied if it is not obvious to an experienced but unimaginative technician in the relevant field.

The “claims” of the patent define the scope of the invention and the owner of the patent will be able to prevent a third party from using a product or process if it falls within the scope of the patent (or if any variant in the third party’s product or process is obvious or does not have a material effect).

An often overlooked issue is who will own the patent where more than one party has been involved in the development of the invention. Thought should be given to this as it raises a number of issues. For example, where there is joint ownership, consent is generally required from all the owners to exploit the patent. An alternative option would be for one party to own the patent and licence the right to exploit it to the other. However, the ideal arrangement will depend on the circumstances.

Wearable technology requires consideration of a number of issues, such as collaboration agreements and contractual issues as well as regulation, data protection and competition law considerations. However, without a patent, it will be difficult to stop third parties from copying your invention and benefiting at your expense.

Without patent protection for your wearable technology, a third party may seek to take advantage…leaving you to wear it on the chin!

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