Updated with statement from Fitbit.

Fitbit's ongoing legal battle with Jawbone about patents has heated up recently, as Fitbit claims that certain Jawbone patents are overly broad and thus invalid. Fitbit is challenging a Jawbone patent before the US Patent and Trade Office’s Patent Trial and Appeal Board as well as asking the ITC to throw out three others based on a Supreme Court precedent.

There are at least three lawsuits in play right now between Fitbit and Jawbone which concern patents: a California district court case in which Jawbone is the plaintiff, a Delaware district court case in which Fitbit is the plaintiff, and an International Trade Commission case in which Jawbone is asking the ITC to block Fitbit's imports partly on the basis of patent infringement. Additionally, Jawbone is suing Fitbit in California county court over allegedly stolen trade secrets.

The patent Fitbit is challenging at the USPTO is patent number 8,529,811, "Component protective overmolding using protective external coatings". That patent, which was assigned originally to Jawbone and not obtained with the BodyMedia acquisition, is only named in one of the ongoing cases, the ITC case. According to Politico, Fitbit is claiming that the 2013 patent's claims "recite nothing more than predictable design choices that use known materials and techniques according to their well-understood and established functions".

Meanwhile, Law360 reports, Fitbit filed a motion for summary determination in the ITC case pertaining to three other patents (8,398,546, 8,446,275, and 8,793,522), saying that the "patents merely recite abstract concepts aided by generic computing device and that the question of their eligibility does not turn on any disputed facts." Fitbit is leaning here on a 2014 unanimous Supreme Court decision, Alice vs CLS Bank, which ruled that certain software patents fell into the category of an "abstract idea", something US law explicitly exempts from eligibility for a patent. Speaking to Law360, Jawbone countered that Fitbit has misrepresented and oversimplified the claims in the patents at issue.

"We believe that the patents asserted by Jawbone at the ITC are invalid and should not have been issued in the first place, which is why we’ve filed IPRs to invalidate them," Fitbit told MobiHealthNews in an emailed statement. "Not only is this our right as a defendant, it's also in the public interest to invalidate these patents so that Jawbone cannot assert them against other innovative companies.”

Interestingly (and perhaps not coincidentally) the 2012 patent infringement case between BodyMedia (now owned by Jawbone) and Basis (now owned by Intel) finally came to an end last year, with an out of court settlement between the two companies. One patent named in that case is also at issue in the current litigation, in both the ITC and the California cases (patent 8,073,707 "System for detecting, monitoring, and reporting an individual's physiological or contextual status"). In the Basis case, Intel took the same basic tack as Fitbit, alleging that the patents were overly broad, so a decision in that case could have hurt Jawbone in its current legal battles. 

Beyond the nitty-gritty of the Fitbit-Jawbone conflict, there's a real question about how enforceable patents are in general in the fitness tracking space, one that won't be answered until one of these patent cases is decided by a judge, rather than settled out of court. That clarity could also come from Valencell's cases against Fitbit and Apple.