Could a patent be used to win a marathon? Top-level sport and athletics are often viewed as testing the limits of the physical and mental capabilities of humans. Technology has long played a part in how athletes are able to compete, by influencing how sport is officiated and improving the performance of the participants.

Advances which change the performance capabilities of athletes have always sparked wide debate within the sport and its spectators. Performance-enhancing advances have included the fairly uncontroversial, for example, improved fitness and condition monitoring, and the slightly more controversial, such as improved energy and supplement drinks.

Technology which physically and directly enhances an individual’s abilities to perform by improving their physiology or allowing biomechanical advantages have received the most scrutiny from sport fans. The advent of carbon-fibre rackets, bats and sticks radically changed several sports, but the improved equipment has been largely available to all those who participated, particularly at the top levels of the sports.

However, when Speedo released its LZR Racer swimsuits in the 2000s, which made wearers more buoyant, streamlined and potentially improved their posture, they were only available to Speedo-sponsored athletes. The improvements were so good – a potential 8% reduction in drag – that 20 new world records were set at the World Swimming Championships in Rome in July 2009. The fact that they were not available to all athletes was a contributing factor in the sport’s international governing body’s decision to ban.

History may now be repeating itself in mid-to-long-distance running. On 12 October 2019, Eliud Kipchoge, one of the greatest marathon runners ever, completed the amazing feat of running a marathon in under two hours. Kipchoge is a Nike-sponsored athlete and wore a pair of prototype running shoes in Nike’s ‘fly’ range – the Alphafly. Nike has long been one of the most innovative sports brands in athletic wear, and the ‘fly’ range is no exception. The idea of the shoe is to improve the athlete’s running economy by allowing them to use more of their energy to propel themselves forward. Some have estimated that the reduction in running economy may be greater than 7%.

The running shoes Kipchoge used for his sub-two-hour marathon appear to have a few of the features described in a US patent application (published as US 2018/0213886 A1). The shoe has a sole, which is thought to be around 50 millimetre thick, includes three carbon-fibre plates and four foam-or fluid-filled chambers (labelled 188j, 192j, 190j and 194j in Figure 51) near the front of the sole.

Two of the fluid-filled chambers are arranged between the first and second carbon-fibre plates and two more fluid-filled chambers are arranged between the second carbon-fibre plate and a third. The pressure in the fluid-filled chambers can lie in a range between 20-25 psi. Different size shoes seem to have different sizes of chambers and the chambers are at different pressures. It has been discussed in running forums that the pressure of these chambers could be tuned to the individual athlete, allowing them the optimum energy return for their particular size, weight and running style.

It is not clear from the photos and videos of the shoes whether the prototype used had three or fewer carbon-fibre plates, but it appears to have had at least one. Also, only two foam or fluid filled chambers can be verified in the shoe Kipchoge wore, but there may have been more inside the shoe, out of view from the camera. Together, these features provide a shoe which is very elastic. The effect of the elasticity is to provide an energy return to the athlete while running, ultimately allowing them to run faster.

World Athletics, the governing body for athletics, have recently amended its rules governing competition shoes to “provide greater clarity to athletes and shoe manufacturers around the world and to protect the integrity of the sport.” The new regulations state that the sole must be no thicker than 40 mm and that the shoe must not contain more than one rigid embedded plate or blade. World Athletics also stated that for a shoe to meet these regulations, they must be on general sale for four months prior to an event which it is involved in, and at which official records can be set.

Shortly after this amendment to the rules, Nike announced a new shoe, the Nike Air Zoom Alphafly Next%, which will be available on general sale for the required period, and which will have a sole thickness of 39.5 millimetres and include only one carbon-fibre plate. They also include the foam or fluid-filled cushioning chambers, patented by Nike, which appear to be one of the key components in providing the energy return to the athlete.These shoes have already been provided to Nike-sponsored athletes for warm-up races and test events.

While carbon-fibre plates have been present in athletics shoes for a number of years (Reebok had a pair of InstaPump Fury shoes with a carbon-fibre bridge in the 1990s), and the thickness of the sole has been varied by different manufacturers, no one else has arrived at the combination of features in Nike’s patent. Nike’s competitors now appear to be at a disadvantage, as, for example, new shoes designed by rival suppliers Brooks and Hoka include a plate and/or a thicker sole, but not the cushioning chambers.

Of course, it is not only Nike’s commercial competitors who are potentially disadvantaged by not being able to use this technology, but also non-Nike-sponsored athletes. Athletes sponsored by one of Nike’s commercial competitors will use that company’s equipment, with Nike’s new shoes unavailable to them. The next Olympics in Japan may include a field of runners in patent protected Nike shoes providing a greater than 7% reduction in running economy and those wearing the potentially less efficient shoes of Nike’s rivals. Nike athletes may be propelled over the finish line at a greater rate, and the spread of Nike athlete versus non-Nike athlete in times, finishes and possibly world records broken is going to be very interesting.