Keeping IP fit - patent strategies for the connected home gym
After the start of 2022, many of us will have committed to exercising more. For some this will mean signing up for a monthly gym membership that we use regularly for a couple of months and then rarely use again (cancelling it again in November). For others though this will mean buying a new piece of equipment to use in our homes.
Over the pandemic, connected home gym equipment such as the Peloton bike, Hydrow rowing machine and the Lululemon Mirror have become incredibly popular. The term “home gym equipment” used to mean a home assembled foldaway rowing machine whose seat never quite worked properly and that used to sit in the corner of garage collecting dust. Recently, however, home gym equipment means commercial-grade, low-maintenance, beautifully-designed and well-built pieces of kit whose aesthetics mean they sometimes take centre stage in a lounge.
From a consumer perspective, these pieces of equipment provide the ability to have a fitness class in your own home whilst working out using an ergonomically designed and stylish looking device. From a company perspective, these pieces of equipment are sold at a premium and, importantly, require a monthly subscription to get access to the array of classes performed on these devices. This provides a continual revenue stream for the company. This type of business model is very profitable and allows companies to grow rapidly.
For example, Peloton began in 2013 with its first bike being sold for $1,500 on Kickstarter. It is now a publically traded company with an annual revenue of almost $4 billion (with an increase in demand being provided by the pandemic).
In addition to the actual equipment and subscription services, many of these companies have developed corresponding apparel lines. Some of these apparel lines have been developed in conjunction with established sports brands as well as others that have been developed by the equipment manufacturer themselves. For example, Peloton has developed apparel with Adidas whilst also developing apparel on its own.
Due to the rapidly increasing and ever more crowded market, intellectual property plays an important part in protecting the unique selling point of the products.
Recently, Nike Inc launched a patent infringement action at the US District Court in Manhattan against Lululemon Athletica Inc accusing it of patent infringement with the Lululemon Mirror and its related apps. The action centres around six patents including technology that enables users to target specific levels of exertion, compete with other users and to record their own performance. This functionality is really important for users as it helps the user improve their performance over time and thus reach their goals.
This recent action follows other skirmishes in this area. In November 2021, Lululemon sued Peloton in the Central District of California alleging that Peloton infringed a number of designs for apparel such as sports bras and leggings. A few days prior to this, and pre-empting the suit, Peloton had sought a declaration from the court saying that it did not infringe Lululemon designs.
Again in November 2021, Peloton itself accused Echelon Fitness and NordicTrack maker iFit of patent infringement in the Delaware Federal Court. Specifically, Peloton alleged that Echelon’ bikes, treadmills and rowing machines infringed a patent relating to a leaderboard that helped users compare their performance during live classes. In the case of iFit, Peloton alleged that NordicTrack’s bikes, treadmills, elliptical machines and other kit infringed four patents including technology that allows workouts to be automatically adjusted based on performance.
In many instances of these new pieces of home gym equipment, the actual devices use fundamentally known technology which makes it difficult to protect the core technology of the equipment using patents. For example, the Peloton bike uses magnetic resistance to adjust the resistance on the bike rather than felt pads which have been included spin bikes for many years.
In other instances, the equipment is fundamentally based on known technology but that technology has been adapted for a new purpose. For example, in the Hydrow rowing machine, resistance is provided by a new magnetic arrangement rather than the more conventional fan or water and paddle arrangement. This not only allows the machine to be quieter, but by controlling the resistance 100+ times a second, the experience of rowing on water is more closely replicated. This adaptation of known technology is capable of patent protection in Europe which helps protect the fundamental technology in the equipment.
However, as noted, the equipment itself is only part of the story. The subscription services provide great value to these companies. So, can these be protected?
In short, the answer is maybe. In Europe, the key question to answer is what is the technical effect or advantage of the distinguishing feature or features of the invention compared with the closest prior art. In order for the claim to be even arguably inventive, there needs to be a technical advantage associated with the distinguishing feature.
This notion of technical advantage associated with the distinguishing feature(s) can make obtaining patents for subscription services in this area of technology challenging and careful drafting of the patent application may assist in obtaining patent protection in Europe.
Let us illustrate the challenge in drafting these applications with an example. In order to assist with competition, many of these subscription services provide a real-time leaderboard which is displayed on the screen. This leaderboard identifies people in the class and ranks their position based on real-time performance, usually including the user’s position in the ranking to provide motivation for the user. Given the large number of participants in a class, and the need for real-time updating, this provides certain challenges for the designers of the leaderboard.
However, many advantages for the user are associated with the layout of leaderboard information. Whilst patents to the layout will be very useful (and will help easily identify infringement), these types of advantages are rarely seen as “technical” at the EPO as the layout is one way of presenting information, and so will likely ultimately fail under inventive step.
However, it is possible to improve the chances of obtaining patents to this aspect of the product.
The leaderboard information is generated in a server from data collected from the equipment of many thousands of participants. At the home gym side, this may mean the data is processed and packaged in a particular way to reduce the amount of bandwidth of the home network required and to ease unpacking at the server side so that the data can be processed quickly and easily at the server. This allows the amount of data to be uploaded to the server to be reduced and allows for generation of the real-time leaderboard from many thousands of participants with less resource used at the server side.
Moreover, as many participants’ view on-demand content, the leaderboard will evolve as more participants view the content over time. The mechanism for retrieval of archived data associated with a particular workout and the generation of a live leaderboard for the user viewing the archived workout is technically very complicated at the server side to ensure that server resources are used efficiently.
These mechanisms at the home gym side and the server side associated with this aspect of leaderboard generation are far more likely to be seen as having a technical advantage and it is worth putting in time and effort in describing these areas in the original patent application to improve your chances of obtaining patent protection in Europe.
It may be that many people tire of their home gym equipment and return to more organised fitness classes as Covid restrictions lift. This will leave garage corners across the world filled with ever increasingly expensive pieces of gym equipment. However, it is clear that the connected nature of gym equipment (be it at home or in a commercial gym) allowing classes of many thousands and the desire for people to improve their fitness using technology is here to stay.