With devices getting more advanced and our reliance on connectivity ever increasing, smart technology is a burgeoning space extending in all directions. Although there is little question that much of this space is patentable, certain issues are worth bearing in mind.

What is smart technology?

The term "smart technology" has been used (and is often misused) to refer generally to any electronic device or system which appears to be "intelligent". There seems to be no minimum threshold for intelligence as such, but most systems and devices capable of network connectivity and/or interactivity seemingly qualify.

As the term is so broad, what is included therein are technologies as diverse as: connected vehicles, Internet of Things, smart buildings, smart cities, smart domestic appliances, smart medicines, smart meters, smart phones, smart security, smart toys, smart TVs, smart watches, smart wigs, and wearables (to exemplify but a few). Some of these systems and devices rightly deserve the title "smart", but there is misuse where the term is misapplied simply to create a perception that the implementation of the technology is advanced. Where, however, this technology is truly innovative, patent protection may be available to the inventor in order to secure a monopoly right to its use.

What is patentable?

Briefly, patent protection is available for products, processes and/or systems which are new, inventive, industrially applicable and not excluded. An invention is new and inventive, if at the time of filing, the invention is not known from and is inventive over, i.e. not obvious from, all other systems, processes, products and information available in the public domain. Inherently, most inventions in the smart technology space will be industrially applicable as they can be made and/or used and, generally, they do not fall within the exclusions from patentability.

However, it should be cautioned that simply because a new device/system has been developed in this space, it doesn't automatically follow that it can be patented.

What are the issues?

Many patents exist in this space. Indeed, by the very nature and breadth of this field, there are patentable aspects in respect of each of the parts of the smart technology, e.g. in respect of the devices themselves including parts thereof as well as the applications/uses of the devices, the processing means and connectivity means of and between the devices as well as methods relating thereto, and the processing and use of the data gathered from the devices and systems.

The data itself is, however, generally not patentable. It should be noted that the European Patent Office (EPO) will not grant patents which relate to mathematical methods, programs for computers and presentations of information as such. That is not to say that a patent cannot be secured to a computer program; rather, if the invention relates a computer program, it must be deemed to provide a technical solution to a technical problem to be eligible for patent protection. This is where a lot of smart technology inventions fail. Although they may be directed to clever new ideas, they may not be what the EPO define, as technical.

That being said, where an innovation provides a technical solution by solving a technical problem, the invention may be patentable. This test of technicality does add a degree of complexity in the consideration of legal issues in this space, but it should not be considered to be prohibitive. Indeed, many patents have been awarded in this field and although the assessment will often have to be done on a case-by-case basis, with the right guidance, many new devices and/or systems will have patentable aspects therein.

Another issue which commonly arises in this space is where an invention relates to the use of a known technology for a new purpose. For example, use of a known sensor in a new way. Can this be patented? Unfortunately, the simple answer is, it depends. More often then not, the use of known technologies for new purposes will not warrant patent protection. However, where this new use could not have been foreseen and provides a technical solution which is non-obvious, it may be patentable. Therefore, although again not straightforward, there are avenues which can be taken to pursue even where only a part of the entire concept, process, system and/or device is novel.

A similar question arises where the system and/or device comprises a new arrangement of known things. In short, such systems/devices may be patentable where the new arrangement was not foreseeable and the arrangement provides a technical solution which is non-obvious, patent protection may be sought.

Although there exists much established case law in this space, the determination as regards a particular invention often requires careful review. In fact, more often than not, even where the primary concept is not patentable, commercially valuable ancillary aspects of the invention may be but may require some teasing out.

Examples

Using a generic example to highlight some of the above issues, imagine that I have developed a new product and system for monitoring the health of my pet.

I have developed a new dog collar which can be used to monitor a dog's heart rate etc. If I have developed the sensor and other components from scratch, there is certainly potential that this device is patentable. Even if I am using off-the-shelf components but modifying them in some way to suit the purpose, these modifications might be eligible for patent protection.

The platform I have developed to store the data regarding my dog and do clever data processing and/or analysis might be patentable depending on exactly the steps I am implementing, the information I am considering and the effect of any outputs. Additionally, the new transmission technique and the secure communications channel I have developed could be patented.

Although the new dashboard I provide to the dog owners might be difficult to patent, if this dashboard provides an improved user interface, this might be patentable.

From this example, it should be evident that there are a number of considerations to be made when analysing a product or a system. It may require careful framing, but it is certainly an important consideration to be made if you believe your idea to be innovative.

Conclusion

In summary, if you have invented a new concept, device, process and/or system in this space and believe it to be new and inventive, then it is certainly advisable to consider seeking patent protection. Once obtained, this protection can not only be leveraged and monetised, but it can be used to exclude unauthorised third parties from exploiting it. This is an incredibly powerful tool to have in the commercial war chest.