A Shot & A Miss: Emergence of Patenting Rights on Sport Moves
Patent is a monopoly right granted by the government to an inventor which gives her an exclusive right to make use of that or a right to sell for a period of 14 to 20 years. Patents can also be awarded to noteworthy improvement on already invented items. There already exists a wide variety of patents on sports equipment, such as the ‘basketball’ design made by George L. Pierce in 1929, or even the controversial new line of Nike’s advanced running shoes’ mid sole-Vapor Fly-introduced in 2016. However, the controversy on patentability on sport moves has been a hot topic for a long time now. Let’s see if it has remote applicability in Indian Patents Act or not.
STATUTORY REQUIREMENTS FOR PATENT PROTECTION The Indian Patents Act, 1970, (Patents Act) blatantly says under S.3(m) that an invention is not patentable if it is “a mere scheme or rule or method of performing mental act or method of playing game”. This blatant denial in our statute creates an immense limitation in the eyes of the propagator of such protection. India is a member country of the TRIPS Agreement which follows a similar pattern to that of our Patent Act and says that for something to be patented, it must qualify 3 criterions, namely:
(a) Inventive Subject Matter- The patentable subject matter must be a new product or a process in which there must be some technological advancement as opposed to what already exists in the present public domain. The first hurdle in proving the player’s sport moves is a process or not. It is not clearly stated anywhere that a process may be limited to manufacturing only and neither is it exclusively excluded from the word ‘process’. A process differs from other classes of statutory subject matter in that it "is not a structural entity but rather an operation or series of steps leading to a useful result”. Hence, one could incorporate a sport move like intercepting a shuttlecock in a new way, as a process which was a useful result.
(b) Novelty/Non Obvious- The condition of novelty is used in the sense that it denies patentability to the inventions which are not new in the public domain or in the field where the experts of that art resides. The UK system forges the Windsurfing Test to identify the concept of novelty which was reiterated in Indian courts with the case of M/S Bishwanath Prasad Radhey Shyam Vs. M/S. Hindustan Metal Industries. This includes identification of inventive steps, prior knowledge, observing differences and obtain degree of invention. It is quite unlikely to create a move, which is non obvious to the people skilled in that sport, as human body movements are infinite in its nature, and they may already exist in the public domain. Moreover, there is an additional statutory bar which requires inventors to patent their inventions before it is copied by someone else. This may not be too plausible for a spur of matches.
(c) Utility/Industrial Application- The reason this industrial application was incorporated was in order to prevent inventions which are simply intellectual from being monopolized form of protection. Any discovery or invention must be of such a way that it could be used by the public in general. Robert Kunstadt, the major proponent of IP protection to sport moves, states in his article that, if an athlete discovers a new way of pitching a ball which allows anyone to throw it at a greater speed than usual, then it would be a major inventive step for all the league players. This could be a part of a process in which ball should one use, or the way your hand moves.
TWO SIDES OF THE COIN
It is argued in the favour of patent protection, that it will give financial benefits to those athletes or retired coaches who have trained or developed sportspersons. In the sport of skiing, it is usually a practice of the Olympic athletes to re-learn the new techniques by re-watching old tapes, body position, weight, angles etc. and copy them blatantly. Many sports like synchronized swimming, figure skating, or gymnastics have a well-planned choreography or moves attached with it. They may be granted copyright over the same as a routine, but they must also be allowed to patent them to curb blatant copying. The famous figure skater, Tonya Harding, was the first in U.S. to land a triple axel in the Olympics, winning a gold. If she would have patented it, then she might not have to work as a sales clerk today.
But this may be rebutted by the pre-existing legal tools like contract law. In today’s field of professional sports, an array of clauses are present for the financial support of the athlete based on his individual success. If the athlete truly realized that his move was the true reason behind his success, then he may be able to demand higher prices prior to entering into a contract with big leagues or organizers. There are multiple non-exclusive licenses being passed out to anyone who is willing to pay a particular fee of any nominal amount.
Talking about major players who have made their own patented moves, they are already furthering the game in their own way and are specially known for those things itself. Michael Jordan has introduced multiple anomalies in the game of basketball, however, he didn’t have the need to patent his moves, because he is already popular and famous in his field and is automatically gaining financial rewards, sponsorship and professional accomplishment. Same goes for Rafael Nadal who has broken multiple records and one of the prevailing champions of tennis. He has popularized the forehand shot because he has made this during his course of time and is already difficult enough for other to play it so. He wouldn’t need financial support or revenue from patents and he shall not be dependent solely on it.
The new technological advancements and the derivatives or such moves would need an extra layer of protection which could be summarized by the present intellectual property rights, or even with additional research, find a new realm to protect these sport moves as an upcoming chapter in the field of sports law. It might be reasonable to allow patenting for sport moves, but there lies a whole new line of work that has to be followed through along with an entire sports overlooking body, patent infringement laws’ enactment and even setting up separate tribunals for such. As of now, Indian law does not allow patenting of sport moves, but has no restriction over patenting of sports apparatus.
1. Giuliana R. Garcia, He Shoots, He Scores...and Receives Copyright Protection: How the Current State of Intellectual Property Law Fumbles with Sports, U. Denv. Sports & Ent. L.J. 81 (2011)
2. Jeffrey A. Smith, It's Your Move - No, It's Not - The Application of Patent Law to Sports Moves, 70 U. COLO. L. REV. 1051 (1999)
3. Jane Rapin, Critical Analysis for the Arguments For and Against the Granting of Patent Rights Over Sporting Apparatus and Sport Moves, Available at:
4. R. M. Kunstadt et al., Are Sports Moves Next in IP Law?, Nat’l L.J., May 20, 1996
5. F. F. Scott Kieff Robert G. Kramer Robert M. Kunstadt, It's Your Turn, But It's My Move: Intellectual Property Protection for Sports Moves, Santa Clara High Technology Law Journal, Vol. 24, Issue 4, (2009), pp765-784, pp777
6. Indian Patents Act, 1970
ABOUT THE AUTHOR
This blog has been authored by Nehal Gupta, who is a 3rd Year B.A., LL.B. (Hons.) student at Damodaram Sanjivayya National Law University, Visakhapatnam.
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