Wearables and Where They Stick: Finding a Place for Tech Tattoos in the Ip Framework

• Publication year: 2018

Wearables and Where They Stick: Finding A Place for Tech Tattoos in the IP Framework

Emily A. McCutcheon
University of Georgia School of Law

WEARABLES AND WHERE THEY STICK: FINDING A PLACE FOR TECH TATTOOS IN THE IP FRAMEWORK

Emily A. McCutcheon^*

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TABLE OF CONTENTS

I. INTRODUCTION..........................................................................................332

II. BACKGROUND.............................................................................................335

III. IP PROTECTIONS FOR WEARABLES.........................................................335

A. COPYRIGHT PROTECTIONS FOR WEARABLES.................................336

1. Fixation...........................................................................................336
2. Originality........................................................................................338
3. Separability.......................................................................................339
4. What Copyright Can Do for Wearables............................................340

B. PATENT PROTECTION FOR WEARABLES..........................................342

1. Claimed Invention.............................................................................342
2. Novel................................................................................................343
3. Non-obvious......................................................................................344
4. What Patents Can Do for Wearables...............................................345

IV. CONCLUSION...............................................................................................346

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I. INTRODUCTION

Slide to unlock—Apple's iconic iOS access feature. When Apple introduced the first iPhone in 2007, the slide-to-unlock feature changed the way millions of users accessed their phones.¹ Entering unique passcodes and access patterns soon followed, and the days of flipping open a phone were over.

When Apple introduced iOS 10, the company replaced "slide to unlock" with "press home to open." To gain access to the home screen, the new system simply requires a user to place their thumb on the round button on the iPhone's front screen. However, users were not as enthralled with the technology as the feature's predecessor a decade ago. Many users complained about the frustrating switch and were dismayed that a "fundamental" iPhone feature had seemingly disappeared.² Before long, hundreds of articles instructing users on how to disable the new feature appeared.³

How would smartphone users react to a "tap your wrist to unlock" feature, or a "swipe the butterfly on your forearm" to control your favorite music app? Pretty positively, if you ask MIT's Media Lab and Microsoft Research, the developers of the temporary "smart tattoo", Tattio, and the accompanying fabrication process, DuoSkin.⁴ Building on earlier "wearable" ideas, these developers have combined fashion and function to create a range of stunning, customizable temporary tattoos that allow users to control various features and applications on their smartphones, "unlocking a much wider canvas for

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electronics."⁵ By utilizing inexpensive, widely available gold leaf, the Tattio-DuoSkin developers further distinguished themselves from their predecessors' expensive on-skin interface devices, which used thick copper or silicone based materials.⁶

"Smart tattoos" are not themselves new. Last year, mobile app developer, Chaotic Moon, debuted "Tech Tats," a wearable fitness tracker that connected via Bluetooth to user's smartphones.⁷ CEO Ben Lamm predicted that "[t]he future of wearables is biowearables."⁸

Lamm was not wrong—in the past year alone, at least five other wearable skin interface devices have made headlines. Ranging from alcohol monitoring sensors to facial expression readers, the "tech tattoo" revolution is just beginning.⁹ "This [past] year has seen a raft of sensors and devices take the form of stick-on plasters," and the stick-on trend is becoming even more popular.¹⁰

At the forefront of the trend is L'Oréal, which became the first beauty company to join the wearable movement with the debut of the "first stretchable electronic for mainstream consumers" in January 2016.¹¹ Half the thickness of a hair strand, the super thin, heart-shaped sensor, "My UV Patch," monitors the wearer's sun exposure.¹² Users take a picture of their patch and upload it to the corresponding mobile app, which analyzes the patch's shades of blue to determine the UV exposure.¹³

The cosmetic giant partnered with MC10, a Massachusetts based wearable company that develops thin, flexible stretchable biometric devices.¹⁴ MC10 is the

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brainchild of John Rogers, the innovator behind the first attachable, stretchable electronic circuit that launched the fury of biosensor research and development.¹⁵ MC10's current CEO, Scott Pomerantz, hinted that tech tattoos have the "boundless potential of connected devices,"¹⁶ echoing Rogers' own prediction that they are "where wearables are likely to go next."¹⁷ With everyone from multibillion dollar companies to college student-run startups jumping on the trend, it seems like wearables will become a standard option for consumers who are looking for a way to monitor various aspects of their health while displaying their personal style.¹⁸

If these tech tattoos are the future, what does this mean for the traditional categorical systems of intellectual property? In Part I, this Note discusses the unique challenges these "tech tattoos" present to the traditional copyright and patent schemes. Do the functional, technological aspects of these devices subject them to patent protections, in that they are a "new and useful process [or] machine"?¹⁹ The obvious answer seems to be an emphatic yes, but this response ignores one of the most important—and attractive—elements of these tech tattoos: the colors, patterns and overall designs that attract consumers. Tattio-DuoSkin's golden butterflies and alternating gold and silver lattice designs correspond to access capabilities, but that is just the "tech" side of "tech tattoo." What about the "tattoo" aspect of these wearables? Despite resistance from industry artists, tattoos may fit directly in the realm of copyright.²⁰ Should we then consider tech tattoos "pictorial works," in the same sense that ink-and-pen tattoos are?²¹ Or are these designs a "process [or] system" that is best left to patent regulations?²²

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Critics fault the United States for adopting a "first to file" system, but should the critique end there?²³ With technology changing so rapidly, do the traditional patent and copyright norms no longer fit with the creations that startups churn out? While Part I will attempt to determine the appropriate intellectual property category for tech tattoos, this Note will conclude by delving into whether these protections are even worth the trouble they cause.

II. BACKGROUND

Separating the "tech" from "tattoo" and focusing specifically on the tattoo aspect of these products does not simplify the task of determining whether copyright or patent protections best serve developers and creators.²⁴ Almost exclusively regulated by state and local health codes, the tattoo industry has remained largely outside the realm of copyright and patent protection.²⁵ Because "there have been few interactions between tattooing and intellectual property law," tattoo artists working with the typical mediums of ink and skin are unlikely to expect many formal protections or even know those avenues may exist.²⁶ How then can a developer who works with surface-applied or semi-embedded materials to create similar artistic expressions determine whether their tech-infused designs are worthy of formal protection?

III. IP PROTECTIONS FOR WEARABLES

Copyright protects "original works of authorship, including pictorial works that are fixed in a tangible medium of expression."²⁷ On their face, tattoos seem to fit these criteria.²⁸ However, developers seeking protection might face dilemmas in the three traditional pillars of copyright law: fixation, originality, and separability. The added "tech" element of these tattooed wearables seem to limit the applicability of copyright protections, either indicating developers should seek

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patent protection or that there is a greater issue—traditional intellectual property protections might not serve the best interests of the evolving technological world.

A. COPYRIGHT PROTECTIONS FOR WEARABLES

1. Fixation. A work is "fixed" if it is "sufficiently permanent or stable . . . for a period of more than transitory duration."²⁹ Therefore, the fixation requirement of copyright law poses little to no problem to traditional tattoo artists. Tattoos are relatively permanent.³⁰ In contrast, part of the allure of "smart" tattoos is their temporary nature. Of all the tech tattoos currently or soon to be available to consumers, all prominently advertise the temporary adhesion features.³¹

Courts have yet to determine whether tattoos are sufficiently "fixed" to meet the statute's protections. Since the majority of tattoo copyright cases have settled and tattoo artists largely avoid filing copyrights, the closest comparison would be "tattoo flash sheets," paper reproductions of original tattoo designs.³² While these designs are not actually "fixed" to the body, they are "fixed" to printed paper. There is at least one case where an artist copyrighted his "tattoo flash sheets" and successfully sued a company that reproduced unauthorized copies for airbrush body art stencils.³³ Temporary tech tattoos still fall somewhere in the middle—they have the same creative design aspects that copyright protects for flash tattoos, but are not quite as firmly fixed.

However, courts have discussed the threshold level of "fixation" required to protect a work that is more fluid than permanently fixed.³⁴ In terms of living organisms, the Kelley ...