Associate Ben Beasley discusses the history of innovation in rugby and how intellectual property rights (IP), rights in rugby (and, of course, other sports) may present both a competitive advantage to individual players or the team as a whole, and also a commercial advantage to the manufacturers, designers and suppliers of sports equipment.

Whilst it may seem like the rugby has generally changed little over the years, many readers may be surprised to learn that the sport actually has rich history of innovation.

Innovation has, in many respects, always been a part of rugby. Indeed, according to the famous legend, the game was “invented” when William Web Ellis, a pupil at Rugby school in Warwickshire, England, picked up the ball and ran with it during a football match in around 1823. Regardless of whether the legend is true or not, had the game been “invented” today, it would not represent a patentable invention in Europe because schemes, rules and methods for playing games are excluded from patentability according to Article 52(2)(c) of the European Patent Convention (EPC). However, all rugby codes, including rugby union, league and sevens, have always been relatively open to innovation, with administrators constantly looking for ways to enhance the enjoyment of the game for players and spectators alike.

The protection of intellectual property (IP) rights in rugby (and, of course, other sports) may present both a competitive advantage to individual players and the team as a whole, as well as a commercial advantage to the manufacturers, designers and suppliers of sports equipment. Almost every aspect of the sport, from the players’ garments and equipment, to the television rights, is the subject of some form of IP rights. Various different types of IP rights may even feature in a single article. For example, the garments worn by players may be the subject of a plethora of IP rights, including trademarks for a sponsor’s logo, design rights for any distinctive shapes or surface decoration and patents for any clever technical features.

From a competitive standpoint, the articles worn by the players may provide them with an edge over the opposition. A good example is the boots worn by some rugby (and football) players that have so-called “blades” mounted on their sole (as found on the Adidas Predator boot worn by many top-level players, including retired England player Jonny Wilkinson).  These blades replace the studs found on the sole of traditional boots, and are said to provide the player with superior grip in a variety of conditions. With increasingly fine margins between players’ abilities (particularly at a professional level), inventions such as this could provide a player with a competitive edge that ultimately determines who wins and who loses.

Wearable technology is another important area that has been evolving over a number of years to become a key element of the sport.  It is now common for Players’ shirts to incorporate a tracking device that enables their movements to be precisely followed during the game (you may have noticed the tracker: it’s the small bump between the players’ shoulder blades). Modern player tracking systems even work indoors, which is useful for occasions where the venue is enclosed (for example, the Millennium Stadium in Cardiff, Wales). Catapult Sports, who are one of the leaders in this area, have developed a local positioning system (LPS) that utilises nodes placed around the sporting venue that effectively perform the job traditionally fulfilled by satellites. Such innovations represent a clear advantage over traditional GPS tracking systems, which require there to be a line-of-sight between the tracking device and the satellite in order to operate.  When used in combination with other wearable devices, such as heart rate monitors, a player’s all-round performance can be reliably monitored.

An invention may also change the dynamics of the game for both teams. For example, the rugby ball has changed quite significantly since the days that it was significantly larger, rounder and manufactured from pigs’ bladders clad with leather.  Even today it remains in a state of evolution.  Leather-clad balls were replaced by modern synthetic equivalents during the 1980s.  In the 1990s, Gilbert (one of the most famous rugby ball manufacturers in the world) was granted patents directed to the inflation valve. The patents are directed to the positioning, shape and weight of the valve and are said to provide, amongst other advantages, improved flight properties of the ball.  Some modern balls have a special textured pattern that is said to provide enhanced grip, reducing slip between a player’s hands and the surface of the ball, particularly in wet conditions. Being able to prevent others from copying their inventions has undoubtedly provided Gilbert with a commercial edge, having been the official ball provider for every World Cup since 1995, as well as domestic competitions throughout the world.

For an invention to be patentable in Europe it must have technical character, which means purely aesthetic features which lend only to the desirable appearance of an article may not be patented. Even in the absence of such technical character, manufacturers should still consider protecting their ideas using registered design protection. A registered design protects the novel shape or appearance of a product.  A relevant example is the shirt worn by the England and Ireland players at the 2014 World Cup, which is the subject of a registered design right directed to the distinctive shape of the collar.

Beyond the commercial and competitive advantages, innovation may also lead to significant improvements in the safety of the sport. Given its very nature as a physically demanding contact sport, it is unlikely that the risk of injury will ever be completely removed from rugby.  However, steps can still be taken to ensure that the game is as safe as possible, whilst maintaining the core features of the game, such as the tackle, scrum and ruck. To that end, there have recently been calls to modify the laws of the game with a view to making it safer and avoid any opportunities for injuries occurring.  This also represents a chance for manufacturers of personal protective equipment to create new and innovative products that aim to reduce the risk of injury.

Rugby players are not required to wear a substantial amount of protective equipment, with the mouth guard being the only obligatory form of protection. Many players choose to also wear shin pads, shoulder pads and head guards (also known as “scrum caps”), and with the current drive to improve safety it is reasonable to foresee an increasing number of players adopting such equipment. With a potential growing reliance upon personal protective equipment, designers of new products need to strike a balance between providing players with adequate and effective protection and, at the same time, still allowing players to feel the knocks and bumps. In this regard, lessons can be learned from other contact sports, particularly American football.

It has been speculated that the body armour worn by American football players in fact encourages them to hit even harder than they would do in the absence of such protection, thus diminishing its overall effectiveness. A classic example is the helmet-to-helmet collision, where players intentionally make helmet-to-helmet contact with a high degree of force during a tackle. Prior to it being outlawed by the major leagues, helmet-to-helmet collisions frequently resulted in players receiving what is currently one of the most intensely debated injuries in rugby: concussion.

Unfortunately concussion is now becoming an increasingly common injury in rugby, which is no doubt in part due to the ever increasing physical size and athletic ability of the players. With seemingly regular reports of concussed players and particular concern over the lasting effects of repeated concussions, a hot topic in recent years has been how to make the game safer and reduce the risk of a concussion occurring. Thankfully, great efforts are being made by developers of both the personal protective equipment and the tools that help to diagnose concussion in an attempt to address this issue.

Naturally, it is desirable to minimise the chance of players becoming concussed in the first place.  Beyond modifying the laws of the game, the offering of new, innovative head protection may go some way to achieving this. For example, the innovation could be the development of a new padding material that has improved shock absorbing properties compared with existing materials, or it might be found that a particular arrangement of the padding material provides a player with enhanced protection. Not only must the article provide adequate protection, perhaps an equally important aspect that must be considered is comfort. Most players who wear head protection (myself included) know that it has always been, in general, sweaty (and smelly!) and uncomfortable, and it can be difficult to find that “perfect fit”. Such issues have undoubtedly put off many players from wearing head protection.

However, upon a recent shopping trip to replace my aging head protector, it struck me that things are beginning to change. Manufacturers appear to be taking note of many of the problems that are traditionally associated with head protection, as demonstrated by the development of new designs that have improved ventilation, anti-microbial treatments and modern, resilient and light-weight padding materials, all without sacrificing the primary protective function of the article. Furthermore, the aesthetic properties are also improving, which is particularly important for the fashion-conscious players of today!

With safety concerns at the forefront of the modern game, an increasing number of players will undoubtedly adopt headgear (especially from a young age). Manufacturers and designers of such equipment should consider exploring patent protection and/or registered design rights to protect their ideas and designs.

Efforts are also being made to develop wearable technology that can effectively detect concussion in real-time. For example, in-helmet impact detection sensors have been developed for use in American football helmets. Once installed, these sensors monitor impact forces and this information is fed-back wirelessly to medical staff, enabling constant analysis of the forces placed upon a player’s head.  Such devices still only provide an indication of the force of an impact and they are unable provide any measure of a player’s reaction, i.e. they cannot “look inside” a player’s brain to see if any damage has actually been done. Thus, in tandem with developing head protection and wearable impact detection technology, huge efforts are also being made in improving the diagnosis of concussion.

It can be notoriously difficult to identify whether a player is concussed. Not only is it hard for match officials to spot when a player might be concussed, the pitch-side medical staff are reliant upon simple observation through interviewing a player who they suspect may be concussed using simple psychological tests.  Indeed, although MRI and CT scanners are useful in establishing whether a player has suffered a brain injury, even these tools can be unreliable at detecting concussion.  Moreover, such bulky and expensive devices are not readily available to professional teams, let alone amateur sides!  As a result, efforts are being made to develop instruments which help with the diagnosis of concussion. Whilst diagnostic methods per se are an exception to patentability in Europe according to Article 53(c) EPC, a device that aids in the detection of a concussion would not be.  Ideas that are currently under investigation include eye tracking technology, and breathalysers and saliva testers, which test for the presence of particular biomarkers (such as proteins) that can be present when a player is concussed. However, with research into such devices still in its infancy, the challenge of developing a portable device that can be operated by pitch-side staff to quickly and accurately detect concussion remains.

As can be seen, rugby is a sport that continues to evolve and with every major tournament comes a new wave of innovation. Manufacturers of sporting equipment should consider seeking protection for their IP in order to stay ahead of the game. If you would like to learn more about how IP rights can be used to protect your sporting ideas, then please do not hesitate to contact the attorneys at Venner Shipley LLP.