In the highly competitive world of professional sport, technology delivers the marginal gains that can be the difference between success and failure. What role does IP play in this context?

Many of us enjoy watching sports live and on TV, including recent global events such as the Commonwealth Games, UEFA Women's Euro 2022 and US Open Tennis Championships. And, while it may not always be evident to spectators, technical innovation is playing a growing role in delivering improved individual and team performances, better experiences for fans and greater commercial opportunities for clubs and leagues.

IP rights are pivotal in developing and disseminating that innovation - and the investment in R&D often has an impact far beyond the world of professional sports in areas as diverse as medicine, transport and fashion. The "trickle down" of technology into consumer life has become ever more noticeable in recent years.

The impact of the development in technology can be seen across all sports at both professional and amateur level, including in personal equipment, clothing, safety, measurement and analysis. A recent survey of winter sports experts by Mastercard, for example, predicted that the industry would undergo a "technological revolution" by 2025, across athlete training and recovery, general convenience for winter sports holidaymakers, and health and safety around ski lift technology partly due to the impact of COVID-19. The "Sports Tech" industry even has its own awards - the 2022 shortlist was recently published.

Sport and tech

A few examples show how technology can improve sports performance, help monitor safety/fitness and enhance decision-making:

  • Motor racing: Formula 1 constructors have been at the forefront of developing new technologies to improve efficiency and enhance their chances of getting on the podium which have trickled down into consumer products. Examples are anti-lock braking (ABS), kinetic energy recovery system (KERS) and better chassis designs. The sport is now focused on delivering sustainability through improved aerodynamics and hybrid engines with the aim of becoming net zero by 2030.
  • Running: Shoes such as the Nike Vaporfly 4% have innovative features such as carbon plates, deep foam midsoles and lightweight uppers, which have been helped runners win races and break world records, as Wired magazine explained in a recent article. Up to 4% improvements in efficiency has led to accusations of technology doping - but these shoes are now regularly seen at fun runs and amateur events as well as elite races.
  • Safety and fitness: In contact sports where players are vulnerable to injury and exhaustion, such as rugby union, coaches now keep track of players' health and fitness with video and drone analysis, GPS trackers and even smart gumshields. Technology has reportedly transformed the approach of teams such as Harlequins Rugby Club, before, during and after games
  • Decision making: Technological aids to officials are now ubiquitous in professional sports, from VAR in football to ball tracking in tennis and DRS in cricket. These use a mix of technologies, including high-definition cameras, microphones, video/audio analysis and predictive software to help umpires and referees avoid mistakes and - hopefully - leave both participants and spectators satisfied.
  • Bringing sports to life: Sports fans are already used to seeing multiple angles, replays and animations of their favourite moments. This is increasingly being enhanced by data analysis, customisation and augmented reality. Even "back-to-nature" activities such as winter sports are expected to see innovations with new products such as snowskates and e-vehicles, smart ski helmets and intelligent wearables.

What role do IP rights play?

The global sports tech industry was valued at $17.9 billion in 2021 and is expected to grow to $40.2 billion by 2026. The global sports industry as a whole is valued at some $388.3 billion in 2020, with technology driving predicted future growth. Many innovative companies have already demonstrated how successful sports tech can be pivoted into commercially successful businesses: for example, Hawk-Eye Innovations, famous for its ball-tracking technology, was acquired by Sony in 2011.

Patents provide an important means of protecting sports innovation and delivering returns to investors. Companies such as Nike and Salomon have filed numerous patents for inventions relating to running shoes and skiing equipment respectively, while start-ups such as Catapult, an Australian company that provides GPS trackers for professional and amateur sportspeople, also own several patents.

But deciding whether to patent a new invention requires careful consideration. These considerations start with the usual concerns around patents, including of the nature of the technology, the prior art and competing technologies, and of course the potential commercial merits of securing a monopoly right to the technology. Potential licensing or technology transfer opportunities should also be considered.

In addition, sports innovators face commercial challenges that most other tech businesses do not. Is their technology too innovative? Further, do the rules of the sport in question permit enforcement of such protection or disincentivise innovation by specifying parameters that must be complied with?

If the innovation, or the protection sought, is perceived to give an unfair advantage, the innovator may not be able to reap its benefits. For example, the FIA has regulated that patented technology would be ruled illegal if an F1 team were to try and enforce a patent against the competition. World Athletics recently approved new shoe regulations, following complaints from some athletes and consultation with the major manufacturers, which are designed to avoid "unfairness or a paradigm shift in athletic performance". The other side of IP - trade marks and branding, and the associated licensing and sponsorship - can tie an athlete to a sports company with less competitive technology. Sports encourage participants to be ever faster, go further or jump higher. Athletics, already with documented issues around individual performance enhancing drugs, is particularly wary of anything that enhances performance by way of "technological doping". These concerns are nothing new - the javelin was reengineered in the 1980s and 90s to limit the distances thrown - but are at the forefront of public thinking.

Motor racing can be a minefield here, given the complex regulations about what technology is permitted, and when reverse engineering is allowed. A good example came in 2020 when the Racing Point team was found to have copied the rear brake ducts from Mercedes' 2019 car (brake ducts became a listed part in 2020). After Renault protested, Racing Point was fined and docked points but allowed to compete in future rounds with the same brake ducts, as explained in an article in MotorSport.

Another example includes cyclist Chris Boardman's 1996 hour record, which was recategorized from the Union Cycliste Internatioanle (UCI) hour record to "best human effort", as his one off time trial bicycle was built by LOTUS, but deemed too technologically advantageous by the UCI. Boardman's "best human effort" still stands, and the since regulated UCI record has failed to top it.

How to protect innovation

Patent attorneys can help businesses capture the valuable innovation and formulate an IP strategy. This could incorporate patent protection alongside other IP rights and business tools. Design rights (design patents in the US) are often valuable for protecting the look and feel of clothing and equipment, for example, as well as the interfaces on electronic products.

Trade marks have a very important role to play where the innovative features of, say, running shoes or pro bikes are implemented in mass-market models: consumers will want to be sure they are getting the same products that their heroes use. Trade mark rights link the superhuman performances on TV to the average consumer, purchasing the resultant products, and bankrolling future innovation. Trade marks are also essential to engage with and ensure the trust of fans, through merchandise, sponsorship and media deals, which can be worth hundreds of millions of dollars. Football club Real Madrid reportedly earns $220 million a year from sponsors Adidas, Fly Emirates and the UAE. In the US, the NFL broadcasting rights alone are valued at $4.5 billion a year.

Not surprisingly, therefore, sports teams, sponsors and even individual players often protect their brands across a wide variety of goods and services, and many have stringent anticounterfeiting strategies. TV companies and tournament organisers also frequently take action against copyright pirates and unlicensed broadcasts of valuable sporting events, as well as against gambling companies and others that use protected data or databases without authorisation.

Beyond the stadium

Aside from its direct value, the growth of the sports tech industry creates opportunities elsewhere, and here patents can be critical to establish commercial partnerships and technology licensing agreements.

Since 2011, for example, the motor racing company McLaren has been working with the pharmaceutical giant GSK to apply its technology to pharmaceutical research and advanced manufacturing in areas such as data management, predictive analytics and simulation in design. Williams Advanced Engineering, another Formula 1 constructor, helped develop Aerofoil, a device to save energy in supermarket refrigerators - while another part of Williams developed the energy recovery system now used on London buses.

At the more everyday level, many of us probably own clothing, equipment such as bicycles, or devices such as wearable gadgets that incorporate elements originally developed for professional sports. So, even if you'll never be a professional sports player, it's likely that you benefit from technologies that have been developed for them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.