While many marathons (including Boston, New York and San Francisco) went completely virtual this year amid the ongoing COVID-19 pandemic, the delayed London Marathon was one of a small number to go ahead as a “real life” event, albeit only for athletes in the “elite” category, while a virtual London Marathon was held on the same day for all other runners.
If you managed to catch a bit of the rainy real-life event on TV at the beginning of October, you may have noticed the large number of runners wearing a smart running watch. These devices (from companies like Fitbit, Garmin and TomTom) have revolutionised the way runners are able to train through a myriad of clever features. These include the “basics” like measuring time, distance and current pace. Many models also include more advanced features such as heart rate detection, real time mapping and VO2 max estimation. Some models are even able to generate bespoke training plans based on their wearer’s current fitness level and training goals. It’s a far cry from the days of having to work out one’s pace using a paper map, a piece of string and a stopwatch!
One of the neatest things about these running watches is the algorithms they use to accurately estimate an impressive range of fitness parameters from a limited set of physical inputs (e.g. from electrical, light and/or motion detectors). Such algorithms are often uniquely developed by the maker of the watch and the quality of these algorithms can be key to the success of a particular model or brand. It is therefore highly desirable to keep these algorithms protected from competitors. One way to try to protect such algorithms is to seek patent protection.
Patent protection in Europe
When seeking patent protection for a running watch algorithm in Europe, it is important to ensure the algorithm has “technical character” and that this is reflected in the claims. If this is not done properly, there is a risk the algorithm will be (i) excluded from patentability by the European Patent Office (EPO) as a mathematical method as such (e.g. if the algorithm is claimed purely as an abstract mathematical method) or, if not excluded from patentability, (ii) found to lack an inventive step due to a lack of technical effect.
Avoiding pitfall (i) – exclusion from patentability
This is relatively straightforward. By ensuring the independent claims are directed to a “computer-implemented method” (or similar) comprising the steps of the algorithm and/or a “device comprising circuitry” (or similar) configured to carry out the steps of the algorithm, the claims cannot be excluded from patentability as defining a mathematical method as such.
Avoiding pitfall (ii) – lack of a technical effect
This can be more tricky because it is more subjective.
As discussed in the EPO Guidelines for Examination, claims containing mathematical method steps will typically have a technical effect if (a) there is a sufficient link between a specific technical purpose of the claims and the mathematical method steps and/or (b) the mathematical method steps are particularly adapted to a specific technical implementation of those steps motivated by technical considerations of the internal functioning of a computer.
A claim directed to a running watch algorithm might be found to satisfy requirement (a) if, for example, the specific technical purpose of determining a specific type of new physiological information (e.g. VO2 max) and the input and output data of the sequence of mathematical steps of the algorithm which enable the specific technical purpose to be realised are clear from the claim wording. The Guidelines for Examination give examples of “determining the energy expenditure of a subject by processing data obtained from physiological sensors” or “deriving the body temperature of a subject from data obtained from an ear temperature detector” as being acceptable technical purposes. It stands to reason that determining other physiological information (like that determined by a running watch algorithm) should therefore also be an acceptable technical purpose. The claim might be found to satisfy the requirement (b) if, for example, the specific way the mathematical steps of the algorithm are implemented on computer hardware taking into account technical considerations of that hardware (e.g. improved processing efficiency or lower power consumption) is clear from the claim wording.
The specific technical purpose and/or technical implementation of a given running watch algorithm will likely vary significantly from case to case. It is therefore important to ensure the technical effect of the algorithm is apparent from the teachings of a patent application directed to the algorithm and, critically, that this is reflected in the wording of the claims.
Running watch algorithms can certainly be patentable in Europe to help running watch companies stay ahead of the competition. However, there are important things to keep in mind when drafting and prosecuting patent applications for running watch algorithms. In particular, as well as ensuring the claims do not fall foul of formal patentable subject matter exclusions, it is very important to ensure the EPO can be persuaded the algorithm is associated with a suitable technical effect and that this apparent from the claims.
If you would like to know more, please contact Arun Roy or another member of the Kilburn & Strode patents team.