We think we have solved the mystery of creation. Maybe we should patent the universe and charge everyone royalties for their existence.” – Stephen Hawking
Innovation and creativity are the key drivers in the world of sport. In every sporting field, inventors and the creators are working behind the scenes to push the boundaries, creating new opportunities for enjoyment to better their performance. Sports show Intellectual Property in action. Patents encourage the technological advances that result in better sporting equipment. Trademarks, brands and designs contribute to the distinct identity of events. Copyright generates the revenues needed for broadcasters to invest in the costly undertaking of broadcasting sports events to fans all over the world. Intellectual Property rights are the basics of licensing and merchandising agreements that earn revenues generated out of rights to support development of the sports industry.
Are sports move patentable? What about Michael Jordan’s slam dunk, Pete Sampras’s serve, or Tiger Woods’ swing? After all it can be a great advantage for certain athletes.Now the question of the fact arises if Sampras had patented his serve, where would Andy Roddick be right now? And for every other person out there who tries to duplicate what their favorite sports celebrity does, a patent infringement complaint could land on their doorstep or slam dunk in the big game could be forfeited due to patent infringement. The answer to all these questions is sure according to me then why not patent a sports move? If a sports move meets the patentability requirements of utility, novelty, and nonobviousness, then why shouldn’t it get patent protection?
Patent law in sports move has been in dispute for a long time now. Before coming to arguments for and against it, we need to first look into the principles of patent law. There have been various patent of sports move in the United States of America but there are no patents in the United Kingdom and India. There are also arguments to be made for copyright and trademark protection of sports moves but our focus is primarily on patenting of sports moves. At present, there are very few patents on sports moves but the few that are popular and well known are those such as D.S. Miller’s Dominant Hand putting method and Nolan Ryan’s baseball pitch, both in the United States of America. D.S. Miller’s dominant hand putting method has an interesting story where he was unable to putt properly due to a hand injury and thereafter devised a method by which he could hold the club normally in his right hand and place the left hand above the right wrist on the club. He showed that this had brought his handicap from 15 to 8! It was clearly a marked improvement from the previous technique and could provide a considerable advantage to anyone else who tried it. The standard for an invention to get a patent should be new, useful and non-obvious. If an invention meets this standard, the patentee has the right to exclude others from using his inventions for a certain limited period or he can charge a fee for using his patented invention. According to Article 27(1) of Patent Law, Patents shall be available for any inventions, whether products or processes in all fields of technology, provided that they are new or novel, involve a non-obvious inventive step and are capable of industrial application.
“A patent a day keeps the competitor away.” ― K.C. Kankanala
Kunstadt was the first one to talk about Intellectual Property rights in sports moves but his argument concentrated on mainly copyright and trademark protection and had very limited arguments for patent protection. It was said that his only main argument was based on economics and argues that the athletes should get some rewards since their movements are part of the fuel that drives the sporting economy.
He argues that an athlete by his own labour develops a new move, so he is entitled to the protection such as the career of an athlete is short in comparison to any other profession, so they should be entitled to a patent to ensure that they are financially secure after their retirement. It carries a very less impact since the top athletes of each sport do most of the sponsorship, advertising etc. and they earn the major part of the revenue in comparison to an amateur who earns little. If Patent protection is granted it would be grossly unfair and it would not be equitable towards the amateurs. Since the career of an athlete is usually short, therefore patenting a move for the 20-year term would give him a monopoly right for the use in the sport.
The main problem lies in the natural law libertarian view that there should be no restriction of freedom in the manner such that moving of the human body merely because an attorney filed an application in the patent office. This point of view is incorrect primarily because the filing of the patent does not take away anything from society. It will only restrict the movement of our body and make us realise that we would be prevented from playing a sport in a particular manner, thus this patent wouldn’t be non-obvious and new in the first place. Let us take the example of the Fosbury Flop that was so unique that when it was first used people laughed at it and didn’t feel inclined to follow the method. The method he used was so unique and absurd that not using it did not make anybody feel deprived of that bodily movement. Therefore, a patent is not taking away a right that belongs to society but it is awarding monetary consideration to someone for an addition to society.
Scholars like Nozick have defended patents and copyright with the “Lockean Proviso” which states that “ inventor’s patent does not deprive others of an object which would not exist if not for the inventor.”
Additionally, nothing has prevented the leagues, the countries and the Intellectual Property organizations from drafting rules to level the proverbial playing field by preventing the patentee from making an exclusive use of the patented move. Innovating a non-exclusive license with a nominal fee could do this. It would aggravate the incentive to create novel playing methods in sports while at the same time ensuring competition among all players. However there is, a problem of harmonization of these rules across all countries and the possibility of continual amendments in them. There is also the issue that all countries believe that playing sports is a sovereign matter and might place additional restrictions in cross-border licensing while at the same time enthusiastically ensuring the non-exclusivity of these same licenses within their country. Although these rules and treaties are to ensure sports development may seem like an answer, as it may be best to avoid unnecessary politicisation of sports.
Lastly, it is also important to note that in India, the social effect of a patent is given greater importance over the commercial aspect. There are various provisions of the Indian Patent Act, such as section 3(h) states that method of horticulture and agriculture and 3(i) states that anything curative or procedure relating to medicinal practice cannot be patented. Due to the impact on farmers and public health both these patents are not allowed. More importantly, section 3(m) of the Indian Patent Act does not allow a mere scheme or rule or method of performing mental act or method of playing a game to be patented. Moreover this might be a reference to playing games such as chess where mental stratagem is involved as opposed to the difference in bodily movement. India’s present global standing in sports is still not high enough for India to approve of licensing of new sports methods to its citizens.
Author Details: Khuloos Aziz (Amity law school Noida, Amity University Uttar Pradesh)
The views of the author are personal only. (if any)