On 04 January 2016, the wearable tech company Valencell sued both Fitbit and Apple for the alleged infringement of four US patents. These patents relate to monitoring physiological movement. The suit alleges that Apple sought to incorporate a heart sensor into their Apple Watch which incorporated Valencell's patented technology. Similarly, Valencell is alleging that Fitbit's products also include their patented PerformTek sensor technology. Valencell are seeking an injunction to stop Apple and Fitbit selling their products, a ruling that given the circumstances around the case, there was wilful infringement of their patents and damages from both companies.

The wilful infringement aspect is important from a damages perspective in the US where punitive damages can be awarded where wilful infringement in found. Although over the past few years, the risk of punitive damages has diminished, it is still possible for the court to award punitive damages if these are warranted. The wilful infringement aspect of the case against Apple seems to rest on the alleged downloading of technology white papers from Valencell's website by Apple. In respect of Fitbit, it seems that the wilful infringement allegation hinges on the Consumer Entertainment Show (CES) 2014 where Fitbit and Valencell were located in booths close to one another, and although, at the time, Fitbit executives purportedly showed great interest in licencing Valencell's technology, follow-up requests to Fitbit were ignored.

It is worth noting here that both Apple and Fitbit are notoriously cash-rich successful companies. Apple has vast reserves of cash (around $200 billion) and Fitbit has launched an IPO. This means that they are likely targets in the fiercely competitive wearable tech sector. This was demonstrated in June 2015 when Jawbone, a major competitor of Fitbit, sued Fitbit in the San Francisco Courts for patent infringement (see our article www.dyoung.com/article-jawbonefitbit). In addition to their natural competitors, it seems that the larger wearable tech producers must also now be aware of smaller, specialist, companies who wish to flex their IP muscles in respect of various smaller but important parts of their products.