Patenting Wearable Technology
The market size for wearables technology is huge. The global wearables market was estimated at US$32 billion in 2019. The US market alone was estimated to be $89 billion that year. Wrist wearables are projected to reach $22.49 billion by 2026. The wearables market includes smartwatches such as the Apple Watch, fitness trackers such as the Fitbit, as well as other applications including medical monitoring and telehealth.
A 2020 report indicated that the majority of patents in this space have been filed since the beginning of 2014, with the peak filing period in 2016. Leading assignees in the smartwatch/fitness segment were Apple, Samsung, Seiko Epson and Whoop.
An interesting case study in this space is the dispute between Masimo Corporation and Apple, Inc. Masimo is a global medical technology company focussed on non-invasive patient monitoring technologies. Ceracor Laboratories Inc, a spin-off of Masimo, specialises in research and development in relation to medical equipment.
Masimo asserts that shortly after a 2013 meeting with Apple about the possible acquisition of Masimo’s technology, some 20 Masimo and Ceracor employees were hired by Apple, including its chief technology officer Marcelo Lamego, the named inventor on many of the patents listed above.
On 12 August 2021, the United States Intellectual Trade Commission posted notice of an investigation (337-TA-1276) wherein Masimo and Ceracor allege violations of s. 337 Tariff Act 1930 (US), by Apple based on the importation into the United States of certain light-based physiological measurement devices and components thereof by reason of infringement of certain claims of US Patent Nos 10,912,501; 10,912,502; 10,945,648; 10,687,754; and 7,761,127.
According to the public complaint filed in June 2021, Masimo’s business involves devices designed to non-invasively measure arterial oxygen saturation, even in the presence of motion and low blood flow.
Patents 10,912,501, 10,912,502 and 10,945,648 are continuations (in Australia, known as divisionals) of 16/834,538, relates to non-invasive methods, devices and systems for measuring blood constituents, or analytes such as glucose. This is achieved by the use of LEDs and super-luminescent LEDs, and a series of photodetectors arranged in a special geometry.
Patent 10,687,754 claims a non-invasive, optical-based physiological monitoring system. It involves the use of a plurality of light-emitting diodes configured to emit light in a particular shape, which feeds light through a material which changes the first shape into a second shape. The light is then projected into tissue the wrist of a user, and detected after passing through the tissue, and processed in order to determine one physiological parameter.
Patent 7,761,127 claims a physiological sensor comprising emitters of optical radiation, a thermal mass, and a temperature sensor coupled to the thermal mass, which can be used to non-invasively measure oxygen saturation and pulse rate.
Masimo alleges that Apple’s Series 6 watch, introduced to the Market in 2020, measured arterial oxygen saturation in a manner which infringed claims of its patents. By filing the 337 claim, Masimo sought an order excluding Apple from importing the Series 6 watch and components thereof, which are manufactured in Asia. It also sought a permanent injunction on the sale, importation, marketing, distribution and so on within the United States.
The 337 investigation is the next round in an ongoing battle between Masimo, Ceracor and Apple. Masimo sued Apple in January 2020, accusing it of stealing trade secrets and infringing its patents. Apple responded to the litigation by challenging the validity of Masimo’s patents, with a review currently being conducted by the USPTO.
As one might expect from a market this big, this is far from the only litigation in this space. Recently the USITC issued an opinion in respect of an alleged patent infringement, following a complaint by Phillips North America LLC, alleging infringement by Fitbit, Garmin and others of its patents claiming an activity monitor which could reduce the amount of power consumed during a monitoring operation. Ultimately, the Commission held Phillips had not established that the Respondents’ products infringed its patents.
Apple also faces a patent infringement suit in respect of the Apple Watch’s heart rate monitor, brought by Omni Medsci in 2018. In August this year, the US Court of Appeals for the Federal Circuit rejected Apple’s appeal against a dismissal from a motion to dismiss Omni’s claim, based on an assertion that the patent was not properly assigned to Omni by its inventor Dr Islam.
Apple’s swipe keyboard, which made its first appearance in Apple’s Series 7 watch, is the subject of a not dissimilar claim, although there is no suggestion of patent infringement. In 2019, Kosta Eleftheriou offered an keyboard app called FlickType on the AppStore. He alleges that, following a meeting with Apple, who expressed interest in acquiring his app, his app was removed from the App Store, and it took a year of rejections and appeals in order to get it reinstated.
And this is just the tip of the iceberg for Apple.