The wearable fitness tracker market has grown rapidly in the last decade and shows no sign of slowing down. In the last month alone, Whoop, the American wearable technology company, has released two new devices with improved battery life and new sensors. These fitness tracker devices make swathes of data available through real-time continuous monitoring capabilities which were previously unavailable to end-users. As this technology reaches a state of maturation, it is increasingly being adopted in clinical trials and for patient monitoring in healthcare facilities.
Looking around the Carpmaels office, many of our colleagues are sporting some form of fitness tracker from Apple, Whoop or Oura (in some cases, more than one). These competing companies, despite some variation in product form factor, all provide products which monitor the same vital signs using similar techniques while facing the same constraints (e.g. size, weight, battery capacity). So, in this competitive yet established market, where the recent history of a now-matured technology provides a catalogue of prior art, how can the intellectual property system be used to continue to protect innovation? In this article we explore how data collection devices such as fitness trackers can achieve comprehensive IP protection by considering the entire technology stack.
Hardware
Perhaps the most obvious approach is to protect the hardware configuration of the device itself. However, this is complicated by the prevailing use of photoplethysmography and temperature sensors across many wearable fitness trackers. Of course, there is still the potential to pursue specific arrangements of sensors or new sensors themselves (such as the ECG technology made available in the Apple Watch Series 4), but this hardware-only approach becomes more complicated as the same types of sensor and measurement techniques continue to be used, resulting in a continually growing volume of prior art for those techniques.
Another approach is to protect internal components to the device and accompanying apparatus, which are specific to the form factor of wearable devices. This avenue of patent protection provides a wider array of options than focusing protection on the core functionality of vital sign monitoring, while still effectively mitigating competition in particular form factors of monitor. For example, Oura has pursued battery placement in wearable rings and charging stations compatible with a variety of different ring sizes to cover essential components of smart ring devices. Equally, Whoop has sought protection for pockets within clothing to house a modular physiological monitor, providing protection for the accessory market which forms part of the unique selling point of the Whoop 4.0 product.
Finally, an approach taken by each of the businesses is to utilise the design protection system to protect the appearance of the hardware, thereby leveraging visual form factor differences between the devices to provide protection for each new device release.
Device control software
Technological improvements to fitness trackers themselves can also be captured in terms of the device software. In markets such as this one, where every product is capable of making similar measurements, software-based functionality improvements which affect end-users may be some of the main features which differentiate commercial products. In the fitness tracker market, this is particularly true when addressing limitations of the wearables. By way of example, one key area is power management and charging of these fitness trackers. For example, Whoop has sought to protect the disconnection of data antennae to avoid interference with wireless charging; a wearable fitness tracker is of little use if you are not able to charge it. In the same vein, Oura has sought to protect methods of activating sensors depending on the level of surface contact detected to reduce power usage.
It should therefore be easy to imagine that, even in the inconceivable scenario where all hardware combinations and arrangements were exhausted by prior art availability, there would remain a number of possible inventions relating to control of those pre-existing systems. In other words, even where an optimal hardware solution is created, protecting innovation in the control of that hardware may be viable through the patent system.
Data Processing
As a consumer, one of the main differentiators of current fitness tracker products is the insight that they provide through the way in which they process data. This data processing can be split broadly into two categories, data processing which takes place on the device and data processing which takes place remotely on secondary devices (including dedicated servers and cloud computing capacity).
Device-side processing is, of course, limited by the processing power of the device itself and blurs with the ethos of pursuing device control software protection. However, some processing will always be possible, particularly in devices with displays and which also function as smart watches. For example, identifying an activity which has been performed or determining energy expenditure from sensor data, benefit from being computed on a device level in smartwatches.
Remote processing can be used to compute and/or extrapolate significantly more complex metrics. On one hand, models for generating device-unique scores, such as the Whoop stress score, for end users could be the subject of a patent application. Protection could also be sought for processing related to detecting physiological conditions, such as infection. On another level, this processing may simply improve data acquired directly from sensors, such as by selectively using detected photoplethysmography pulses to determine physiological metrics. Finally, protection may be pursued for data post-processing which makes predictions about a user, such as estimating delivery dates for pregnant users.
As fitness trackers are used by a greater number of end-users, creating large datasets, the data they produce is becoming increasingly recognised as useful for clinical monitoring, analysis and trials. As such, the data arising from this data processing is becoming more valuable (particularly with the prevalence of machine learning models). Therefore, patent protection for data processing is a two-pronged threat in this field, protecting the acquisition of data and, potentially, the data itself as a direct product of a claimed process.
In summary, even if the industry settled on a single device architecture with optimised control software, the products of different companies could still be commercially differentiated by their processed data offering. In such a scenario, even if the fitness tracker market hasn’t yet reached this point and may never do so, data processing innovation still could be covered by patents to protect commercial interests.
Conclusion
When considering patent protection for data collection devices, it is often easy to become focussed on the physical technology offering. However, in competitive markets (such as for fitness trackers), where the technology is relatively mature, it is becoming increasingly important to consider protection for the entire technology stack and companies appear to have recognised this need. The fitness tracker industry is only one example of this approach being put into action. This full-stack approach is only becoming more important across data-rich industries, where significant value and product differentiation for end-users can be ascribed to data processing and the datasets resulting from this processing.
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