For athletes and fitness enthusiasts, wearable technology holds the promise of delivering more and better skills, strength, speed, performance and enjoyment. While wearable technology is still in its infancy, the industry is growing rapidly as developers create new products. With innovation often come challenges, and developers and manufacturers will no doubt face issues, not just in the actual development and manufacture of these state-of-the art devices, but legal issues and challenges as well.
What Is Wearable Technology?
At one end of the spectrum is perhaps the most well known example of wearable technology today, Google Glass. Wearable computing in perhaps the broadest and most comprehensive sense, Google Glass embodies endless technological possibilities for everyday life, both real and yet to be imagined. At the other end of the spectrum perhaps, is TEC Technology Enabled Clothing (TEC®), which is less like in actual technology and more of an enabling delivery device for other’s technology. Along the spectrum between these two examples, however, there are many, many more products – both already for sale and still in the development stage – that are part of the wearable technology boom, including technology enabled clothing, accessories and equipment, as well as mobile device applications the coordinate with and power these products.
The first version of wearable technology – “wearable computing” – was developed in 1993 in the form of a pair of glasses with an attached reflection technology display. Thad Starner, a founder and director of the Contextual Computing Group at Georgia Tech’s College of Computing and a wearable technology pioneer, has worn some version of these customized glasses (along with other mobile computing device prototypes) since their inception. The glasses’ reflection technology display worked by using a little mirror to scan across the user’s eye, which created the illusion of an image. As the story goes, Georgia Tech, Starner founded MIT’s Wearable Computing Project, and it was during this time that he ran into two grad students named Larry Page and Sergey Brin (now of Google fame) and had a chat with them about his customized computer glasses (which he happened to be wearing) and the challenges of wearable computing. Later, in about 2010, when Google introduced Android, Starner emailed Page and Brin to suggest that they begin work on wearable computing, saying: “Now that you guys are doing Android and you’re doing these phones, you should really take a look at the wearable computing technology we’ve been working on in academia. Why don’t you come out to Atlanta and, I’ll show this stuff to you?” Starner’s timing happened to be perfect, as only two months prior, Google had decided to develop some kind of wearable technology. As recently as April 2014, Google started offering Google Glass for consumer purchase and use.
Technology Enabled Clothing
Technology Enabled Clothing (TEC®) is the trade name for a patented system of clothing that allows the wearer to store and use electronic devices like smartphones, headphones, tablets, Google Glass, and other mobile technologies. SCOTTeVEST, founded in 2000 by Scott Jordon, is reportedly the only company holding a patent that covers the incorporation of wires into clothing. In addition to marketing its own products – it’s main product is the SCOTTeVEST line of clothing, clothing that features hidden pockets for storing those gadgets (and others) – the company has licensed that patent to some of the biggest names in the apparel industry, including Under Armour, The North Face and Jansport, allowing those companies to develop and sell clothing that incorporates wires for iPods, MP3 players, heart rate monitors, and other mobile gadgets. According to AP News, the industry representing the convergence of clothing and technology is expected to be worth more than $7 billion within eight years.
Sports and Fitness-Related Wearable Technology
The emerging trend of the “quantified self” – the concept of self-knowledge through the tracking of personal data through technology – has created a growing market in wearable technology that tracks training and performance in a wide variety of ways, and appeals to fitness and health enthusiast, as well as both amateur and professional athletes. For example, Apple recently aired a new iPhone 5s during the Stanley Cup finals highlighting the ways that users can use their iPhones and a variety of apps and wearable devices in their fitness activities. The advertisement “Strength,” which is part of the company’s “You’re more powerful than you think” campaign people running, swimming, weight lifting and training, and highlights a variety of wearable and training devices, as well as fitness apps, including the Misfit Shine fitness tracker (which collects information on the wearer’s activities including cycling, swimming, walking and running and syncs to smartphones just by placing the round disk on the screen, the Wahoo bike sensor (which collects bike speed and cadence data), the Withings Scale (which tracks not only the users weight but other heath-related information like blood pressure, heart rate, lean mass and BMI) and the Adidas miCoach Smart Ball (a soccer ball with internal sensors that collect data speed, rotation, distance and direction and sends it to an iOS-based device, like an iPhone), as well as the Nike+ Running, Strong Lifts and Argus apps.
These are but a few of the fitness-related wearable technology products available today. Others include the Fitbit Flex and Jawbone Up24 wristband activity trackers, which allow wearers to track personal health and fitness information, including the wearer’s walking and other physical activities, as well as sleep and food consumption.
Technology companies are also investing in product development for wearable technology relating to outdoor sports, and the market for these devices continues to grow, with outdoor sports enthusiasts increasingly using activity and route trackers, route planners, and strap-on cameras to enhance the sporting experience and improve performance. Best known to the average consumers only for its automotive GPS products, offers wearable technology products aimed at assisting hikers, fisherman, cyclists, rock climbers, and other outdoor sports enthusiasts in recording and bettering their performance statistics. Garmin actually has marketed hand-held, battery-operated GPS systems for hikers and camper for nearly 15 years and, in fact, half of Garmin’s revenues in the first quarter of 2014 were related to wearable technology. Kevin Rauckman, Garmin CFO, has attributed this phenomenon to the company’s commitment to “delivering innovative solutions to help with active lifestyles.”
Some of Garmin’s most popular products include the Edge 1000, a high-end bike computer which provides “a hub of connectivity around various applications” – it connects to most wearable heart rate monitors to measure the cyclist’s heart rate, it records the cyclist’s speed, power in watts and cadence, and it senses and shows the bike’s wheel rotation. Cyclists can download routes to follow that route during an outdoor ride. The Edge 1000 also connects wirelessly with the user’s smartphone using Bluetooth technology.
While the use of video to record – and analyze – athletic performance is not a new concept, the market for wearable personal action cameras continues to grow as both amateur and professional action sports enthusiasts look for more ways to record their experiences and manufacturers continue to refine and add technologies. For example, in addition to GoPro, which is arguably the first and biggest brand in action cameras, other manufacturers like Sony and Garmin offer models that let users add information like location and speed to their videos. The Gramin VIRB Elite also has a GPS and can be connected to both a heart rate and cadence monitor, so videos can include a dashboard showing speed, distance and heart rate – all information action sports athletes would want to know. The camera can also be controlled from the Garmin fenix watch (the brand’s wearable activity tracker that records user performance data).
In addition to the concepts of the quantified self, wearable technology for sports and fitness may also provides aspects of amplified and enhanced reality through a gaming or social component as well. For example, San Francisco-based Active Mind Technology has developed Golf Game, wearable technology combined with a platform that captures data about the user’s “game” and transfers that data to a digital destination, enabling users not only to better their own performance, but also to share with – or compete against – friends. Golf Game uses personal GPS, three-dimensional motion sensor technology, and geospacial technology to map over 30,000 golf courses and recreate a user’s round of golf. Sensors in a small device worn by the golfer and in tags that are inserted on the top of golf clubs capture the data for use with Active Mind Technology’s software platform. The devices record where a golfer is located on the course, what type of clubs the golfer is using, and the distances that a golfer is achieving with those clubs. At its simplest, the device collects performance data, so that golfers know the real distance that they are hitting the ball, as most people think they hit a lot longer than they actually do. Golf Game is more than just a personal data tracking system, however. It adds an online social component. After golfers use Golf Game during a round of golf, their personal data is uploaded and publicly available to other users of system. In this way, through use of the company’s, recreational golfers (even the worst duffers on the course) can play – virtually – with pro golfers, like Lee Westwood, Graeme McDowell, and Jim Furyk, all of whom use this technology. The USGA has even allowed golfers to use the technology during competitions – Jim Furyk wore it during a practice round at The Masters.
Legal Issues Surrounding Wearable Technology
Wearable technology companies are spending enormously on product development and marketing, and investors, manufacturers and distributors of wearable technology are betting that the these kinds of devices will grow into a platform for third-party software developers the same way Apple Inc.’s mobile devices fueled the formation of thousands of mobile-app makers. Wearable technology is not without problems or controversies, however. Over the past year, legal and consumer issues surrounding wearable technology have started creeping into headlines – and into the courts.
For instance, Fitbit recently recalled its Force wristband, an earlier version of its activity tracker, for allegedly causing some users to suffer skin irritation relating to the material and/or colored paint used for the product. Fitbit has declined to say how many Force wristbands were affected by the voluntary recall, but did report that less than 2 percent of users complained about skin irritation. Minor skin irritation might be the tip of the product liability iceberg, however, for the designers, manufacturers, and distributors of wearable technology designed to be used to help users track and increase fitness and athletic performance – especially those that are marketing to amateur and professional action sports athletes. In addition, as the number of wearable technology products increases, government regulators like the Federal Trade Commission likely will increase their focus on these products, including marketing and advertising claims about their efficacy.
The intellectual property resulting from the development and manufacture of wearable technology or technology-enabled clothing are business assets. This kind of innovation can be a costly process, and protecting their investment in their technology through intellectual property law, including patent and trademark laws, is a significant issues for companies. In one of the first known commercial cases involving wearable technology, Adidas has sued Under Armour, accusing the athletic retailer of infringing on Adidas-held patents with its fitness tracker app, MapMyFitness®. The patents in question include those that enable “real-time interactive communication and automated route generation,” “personal data collection systems and methods,” and “performance monitoring apparatuses.” According to the legal papers, Under Armour’s director of innovation and research was previously a senior innovation engineering manager at Adidas with direct knowledge of the company’s patent portfolio, including those specifically at issue in the suit.
Given than most wearable technology is connected in some way to the Internet, developers and manufacturers should also be aware of consumer privacy issues. As part of the so-called “internet of things,” these devices can collect, store and transmit data, some of it personal and perhaps even sensitive medical data. Developers of this technology should not only know, understand and communicate to consumers the extent to which the technology does this, as well as how that data is safeguarded (and it should be safeguarded), but companies must also be aware that if and when these wearable technologies become platforms for other developers applications and add-ons, they must know and understand how those applications collect, store, transmit – and safeguard – data as well. The other side of the privacy coins is the privacy, not of the users, but of others – those who might be viewed, photographed, videoed or recorded using Google Glass for example.
While technology moves ahead, the law often struggles to keep up with the new and changing landscape. Wearable technology is becoming increasing more a part of that landscape, especially in the fitness and sports arena, and developers and manufacturers need to be aware of the legal challenges that this innovation brings.
Google Glass is already causing legal experts to see problems