In order to be irreplaceable one must always be different.
Coco Chanel
Intellectual property is increasingly important to businesses in all sectors. For the fashion industry, the more obvious IP rights to consider have traditionally been those protecting the appearance of an article, in particular copyright (protecting artistic works against copying), and registered designs (which can protect surface decoration and texture, such as pattern or stitching).
But what about patents? Patents protect technical inventions: how things work, what they do, how they are made. In the fashion industry patents have traditionally been largely limited to protecting new manufacturing processes, and new fabrics having “technical” properties (e.g. improved strength). In addition, it can take a number of years from filing a patent application to the grant of a patent, which does not lend itself well to fast-paced industries such as fashion. However, over recent years patents have become increasingly relevant to “non-technical” sectors, such as retail and fast-moving consumer goods, due in part to the prevalence of “smart” technologies in an increasingly connected world. This this is equally true of the fashion industry.
The market for fashion technology wearables and smart accessories is growing at an astounding pace. This trend is indirectly driven by the development of smaller, cheaper-to-produce electronic devices.
With the advent of conductive yarns that can be woven into fabrics, new possibilities have opened. Smart textiles are also expected to create a revolution in the smart wearable market. The size of the global smart fabrics market was valued at $878.9 million in 2018 and is forecast to expand at a CAGR of 31.29% over the forecast period (2021-2026). In both the “wearables” and the “e-textiles” fields, patent ownership is dominated by big technology companies, such as Samsung, Microsoft, LG, Alphabet (Google), Apple, etc.
There are the “smart” wearables of course: not only smartwatches, fitness trackers, and so forth, but smart accessories, such as bangles, wristbands, gloves, and handbags which can synchronize with smartphones, take photos, and measure different physiological parameters. Smart glasses, rings, hearables, helmets and clothing are tipped as growth areas in 2022.
The development of technical fabrics has historically been led by the sportswear sector, and over recent years a number of new textile companies have been producing innovative technical sports fabrics, such as ultralight, high stretch, and high-wicking fabrics.
Then there are smart fabrics which contain microencapsulated substances that bring health benefits, or are capable of thermal insulation by, absorbing, storing or releasing heat. Other microcapsules may be erodible, from friction or pressure, to release fragrance. Nano particles can be used to manufacture fabrics which are dirt-, stain- and odour-resistant.
Some smart textiles are chromo-sensitive, i.e. they change colour according to the wearer’s body temperature and can respond to environmental conditions through the incorporation of photo-, heat- and humidity-sensitive dyes. Although this technology does not embrace the most sustainably responsible innovation (as highlighted in fellow contributor, Mary Fellowes’ article).
Other smart textiles comprise electronics which can monitor the wearer’s vital signs. Thus, conductive fibres can be incorporated into textile polymers, to act as smart sensors and provide real-time information regarding the physical condition of the wearer, for example for use by military or emergency services personnel.
So, technical creativity, as well as artistic design, is becoming increasingly important in the fashion industry. But what are the implications for your business, in particular with regard to patents?
A patent gives the owner the right to prevent others from making, using, and/or selling the patented invention without their permission for a limited period (usually 20 years from filing). It’s a business tool which can, for example, force a competitor to make or use an inferior product or technique, earn royalties through licensing, and help secure investment (investors like patents!).
For example, have you given consideration to any of the following?
- If you are developing a new product, have you considered patent protection?
- If you are launching a new product or looking to enter a new market, have any ‘freedom to operate’ patent searches been conducted, to identify potential roadblocks? If an FTO search is conducted, and a potentially problematic patent is identified, what are your options?
- Do you need to licence-in any technology?
- If you are looking to partner with or acquire a new business, does the partner/new business have any patents or other intellectual property?
- Do you know what your competitors are up to? Have you considered patent “landscaping”, to look at what your competitors are researching?
- What do you do if a claim for patent infringement is issued against you?
Patents are no longer merely only relevant to “tech” sectors. In such a field with lots of different players and plenty of innovation, it is now more than ever worth considering how you can protect your fashion assets.
By Paul Williams, Intellectual Property – Lewis Silkin
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