The Role of Patents and Technology in Sport

This article was included in our Spring/Summer 2012 edition of Inside IP magazine.

As the 2012 Olympic Games draw nearer, there is a familiar sense of hope among those connected with their organisation that these will be remembered as the best Olympics in history.

It is something to which every Olympic city has always aspired, and following the excellent games hosted by Beijing in 2008, the standards required of the XXX Olympiad in London are seemingly higher than ever.

As part of London’s preparations, organisational lessons relating to issues such as infrastructure, ticketing, and crowd control can be learned from previous Games, but when determining what is really involved in making the Games the best in history, one area in particular which cannot be ignored is the advance in technology which has occurred since the previous Games.  In some sectors, particularly electronics and software, a lot can happen in four years!  In an event on the scale of the Olympics, technology is required in all areas, from the construction of the venues and sporting equipment, to more peripheral aspects such as filming techniques and management of media, and, as such, its constant development can have a significant overall effect on how the Olympics are remembered.

Recent trends have shown that technology and innovation are growing quickly in China, at a rate which could soon make China the world’s technology leader.  It was therefore particularly significant that a segment of the Opening Ceremony of the 2008 Beijing Olympics focused on a representation of what are perceived as the Four Great Inventions of Ancient China – the compass, gunpowder, papermaking and printing – and it is clear to see that China is now keen to demonstrate to the world the contribution of innovation to its culture.  It is therefore no surprise to see how significantly the use of China’s intellectual property (IP) system has also increased in recent times (See our update in Inside IP Summer ’11).

Where a sporting event occurs on a global scale, involving so much technology, there is potential for huge financial gains to be made from the protection of ideas through IP rights, primarily patents and registered design protection.  The nature of sport is such that if a clear leader exists in an aspect of sporting technology, all competitors will inevitably want access to that technology to maximise their chances of success.  In addition, technology which is designed for the purposes of the Olympics soon filters through to lower levels of competition once the Games have concluded, further increasing its exposure.  Through outlawing copying of the technology, the IP proprietor can therefore ensure that where the technology is used, it is the real thing, and that royalties can accrue.

An example of a leading sporting technology which has experienced widespread use is a swimsuit known as the LZR Racer®, manufactured by Speedo and designed in collaboration with NASA.  Its panelled structure is the subject of a family of patent applications in jurisdictions around the world, some of which are now granted.  The swimsuit is able to improve hydrodynamic performance (providing a reduction in drag of 38% from conventional swimsuits, according to Speedo) and can lead to swimmers improving their speed by as much as 2%.  Over a middle distance race such as 200m, this would equate to a distance of 4 metres, which is a hugely significant advantage even at competition levels below Olympic standard, and is approximately the handicap needed to be applied to Michael Phelps to make a race competitive.  Sadly for the rest of the field, Phelps was equipped with an LZR Racer at the 2008 Beijing Olympics, which meant that everybody else needed to have the same swimsuit just to have a chance of appearing in the same camera shot at the finish line.  The Japanese Swimming Federation even felt compelled to allow their athletes to wear the suits in order to be competitive at the games, despite the existence of previous contracts with other swimsuit manufacturers.  In Beijing, 98% of all swimming medals were won by swimmers wearing the LZR Racer, and an astonishing 23 world records were set.  Many of Speedo’s patent applications for the LZR Racer were not granted in 2008, but have granted since, and the LZR Racer remains hugely popular as a result of its success in Beijing.  Consequently, it is easy to see just how beneficial the patent protection will continue to be in the future.  It can even be envisaged that some of the LZR Racer design could be used in other sports in which aerodynamic drag is an issue, such as skiing and cycling, leading to enormous licensing opportunities.

At first sight, the application of IP to sport would therefore appear to be as straightforward as in any other sector, but there are, of course, complications, since sport is not driven solely by commercial goals (although many cynics believe otherwise).  Sometimes, the advance in technology exceeds the boundaries of what is deemed fair in a sporting sense, and a counter argument against the drive to improve technology is that innovation in sport encourages what is referred to as “technological doping”, an analogy based on the highly controversial use of performance-enhancing drugs in sport.  In other words competition no longer takes place between athletes, but is a race between technologies, and where the technology is patented, the fact that it cannot be copied can effectively lock in an advantage to the licensees of the patent which can be very difficult to overcome before the day of a sporting competition.  There is not always the opportunity to measure growing success over a long period, as in business, since in sport, particularly the Olympics, the opportunities for success can last a matter of seconds, separated by a four year period, and so the right choice of technology can be critical.

Sporting authorities have recognised, however, that technological doping is not a fault of the patent system (itself designed to encourage innovation), and it seems to be in nobody’s interest to address the problem of technological doping through discouraging innovation and protection of ideas entirely.  The common solution is therefore to operate a series of sporting regulations setting out what technology is permitted and what is excluded in a particular sport, to be operated in parallel with the more commercial IP rights.

In the swimsuit example, rule changes were ultimately introduced by the Federation Internationale de Natation (FINA) to outlaw various swimsuit lengths and shapes incorporating the patented LZR Racer technology.  The consequence of this, however, is that Speedo are likely to return to the drawing board and the practice pool, and rumours of an even faster “legal” swimsuit for 2012 have been circulating, which will inevitably be associated with new IP, if not already covered by the existing IP seeing Speedo’s success in 2008, other manufacturers will also be looking to secure their own competitive edge, and so in terms of avoiding technological doping entirely, it is arguable that sporting technology regulations can actually have the same effect as the patent system in terms of their motivation to innovate further.  From a purely sporting viewpoint, the regulations can often be viewed in some circles as simply shutting the gate after the horse has bolted (bolting at a speed 2% faster than that of the average horse).

The list of “permissible technologies” changes no more rapidly than in motor sport, such as Formula 1, where a number of key advances are made throughout the course of a season.  Formula 1 has been said to be a sport in which only 20% of a competitive edge is due to driver skill, with the remaining 80% deriving from the car, and the sporting regulations imposed by the Federation Internationale de ’Automobile (FIA) are numerous and complex to ensure that this discrepancy becomes no wider.

Where there are regulations, of course, there are loopholes and lawyers, and the interpretation of the FIA’s regulations often follows a similar process to the construction of a patent claim in an infringement or validity assessment.  The most notable example of this was at the start of the 2009 season, when the Brawn team’s innovative, but ultimately lawful interpretation of the phrase “upper edge that runs in a horizontal straight line” in the car’s diffuser system enabled them to design a car which earned Jenson Button the points he needed to ultimately win the world championship, while his rivals were forced to shift their attentions from the court room to the pits to set about finding a way to copy Brawn’s innovative, but unpatented, system, to keep up. The start of the 2012 season has so far seen a similarly contentious design by the Mercedes team in relation to the car’s rear wing, but the protests of others have so far been dismissed. The team recently won its first victory on the track since 1955 in Shanghai, and as such, the benefit of the innovation is clear for all to see.

To those unfamiliar with Formula 1, the lack of patent protection for the diffuser or rear wing may therefore seem a glaring oversight, but protection of the technology through patents in this sport is generally not widespread.  Over the course of a Formula 1 season, technology is generally developed at a rate far greater than the time it would take to obtain and enforce patent protection, and the outlawing of certain innovations so as to maintain a sporting interest would leave little value in protecting certain inventions.  In addition, there are limited opportunities for licensing, since it is difficult to see teams ensuring sporting success through making their technology available to their rivals, which leaves only out-of-competition options available, and the potential risk of divulging a sporting secret through a patent publication can result in the loss of a significant advantage on the track.

In 2000, Ferrari were able to construct an F1 car which was the beginning of a period of domination of the sport over the next five years by Michael Schumacher, while their main rivals McLaren struggled to keep up.  By 2007, however, one McLaren employee’s frustration had become too much, and he was able to obtain a number of documents from a complicit Ferrari employee, which ultimately led to criminal proceedings and a very damaging period for the sport as a whole, despite McLaren’s insistence that no Ferrari IP was present on their cars.

Consequently, there would appear to be benefits to making use of registered IP wherever possible even in Formula 1, since this can reduce the incentive for so-called industrial espionage.  The compromise which can be taken in a sport such as Formula 1 can be to consider use of related technology in the road car sector where IP rights are much more widely enforced.  A number of innovations in Formula 1 originate from the road car industry, but the reverse is also true, with race car innovations often finding their way into commercial road cars, which of course encourages the protection of such ideas while still in the race car phase of development.  Since there is such a range of technology used in both racing and road cars, it is also no surprise to see companies which mainly operate in this sector making technical contributions to other sports.  British cyclist Chris Boardman famously won gold at the Barcelona Olympics in 1992 in the individual pursuit, riding a carbon fibre “superbike” designed by Lotus Engineering, which was later developed into a patented commercial version.

Fundamentally, the aim of the patent system is to promote innovation. Where an added incentive of encouraging fair play in sport is provided, this can serve as irresistible motivation to inventors who bear grievances from past sporting injustices which could have been prevented through use of technology.  Yes, football fans, this is of course the relatively one-sided debate concerning goal-line technology.

Auditions have recently been held to identify technologies which meet the required standards of accuracy and speed of generation of a result which can be used on a global scale.  Of course, the potential financial compensation available through designing the de facto standard for goal-line technology means that patent protection would seem to be essential, and a flavour of the systems which have been tested so far can be obtained from a review of the publications of corresponding patent applications, a telling number of which originate from England, the country  which was on the receiving end of a disallowed goal during the 2010 World Cup, accelerating the customary loss to the Germans.

One of the leading designs is the British Hawk-Eye® system already used in tennis, cricket and snooker, where it has been hugely successful, although its use is limited to the higher levels of these sports.  The associated IP was owned by Hawk-Eye Innovations Ltd, a company bought by Sony in 2011 for an estimated £20m, and has also been licensed for use in computer games.  In cricket, Hawk-Eye is not currently deemed as mandatory technology in view of the existence of other decision review systems such as sound and infra-red based technology but, in football, it is much more likely to be a mandatory system, given that one of FIFA’s main concerns is in ensuring consistency across a number of different levels, and since the only viable alternative, employment of an additional goal-line match official, simply confuses the decision-making process.  Should Hawk-Eye be selected for use by FIFA, FIFA’s regulations could therefore effectively lead to the IP becoming a football-sector analogy of the “essential patents” seen in sectors such as telecommunications where certain operating standards are imposed.  The final decision is expected from FIFA on 2 July 2012.

In summary, the role of technology in sport can be a relatively complex area when sporting ethics and the effect of sporting regulations are considered but, despite this, there remain potentially enormous benefits to be had through protecting sport-related technology through IP.  The overlap between sport and commercial sectors leads to a number of licensing opportunities, in addition to those provided by intra-sport cross-licensing, and the goal of ensuring fair play can actually provide a further incentive for inventors to design and protect the leading technology in a particular sport.  Watch out for more technology-inspired world records at London 2012!

Jonathan will be a volunteer performer at the opening ceremony of this summer’s Olympic Games

Jonathan Hewett 25 May 2012

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