Tuesday, March 29, 2005

March Madness! Patenting Sports Moves

Can you patent a sports move? What about Michael Jordan's slam dunk, Pete Sampras's serve, or Tiger Woods' swing? After all, wouldn't this be a great advantage for certain athletes? If Sampras had patented his serve, where would Andy Roddick be right now? And for every little Mary or John out there who tries to duplicate what their favorite sports celebrity does, a patent infringement complaint could land on their doorstep. Or a touchdown or slam dunk in the big game could be forfeited due to patent infringement.

The quick answer is sure, 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?

The longer answer is maybe and is it really necessary? There is a surprising amount of debate on the issue. After all, a sports move would be a process, procedure, or method correct? If it is useful, novel, and nonobvious, then it should qualify for patent protection, correct? Then why aren't they? Or, why hasn't this caught on? It is not unknown for a sports move to gain patent protection. Dick Fosbury, the first person to go over a high jump bar backwards revolutionized the sport of high jumping, although he was laughed at at the time. Now all high jumpers use his method. It wasn't patented, but in retrospect is was a big deal at the time. Imagine if it had been patented. Where would the high jump be today? Imagine if Michael Jordan had patented his slam dunk. Conversely, Nolan Ryan did receive a patent on his pitch, describing his pitch in excrutiating detail in his patent application.

The biggest place where sports moves see problems is the nonobvious requirement. Many people have slam dunked a basketball, so why is Michael Jordan's method so special? Many people have swung a golf club and won the Masters, so why is Tiger Woods' swing so special? And again, many people have served a 120+ mile per hour serve in tennis, so why is Pete Sampras' serve so special? Each of these examples show methods that have been improved upon in some way, to make them better than what existed before. Obvious? Maybe.

The other big problem is the time related statutory bar requirements for patentability. Public use is a big one. You can't practice your "move" in front of your teammates or that's public use. That might create some problems. Athletes would have to make sure and file that patent application pretty quickly so they don't lose their chance at patentability. Is patentability really the first thing on their minds? Doubtful.

Then, of course, there are the policy reasons behind not patenting sports moves. Is athletics really advanced by receiving patent protection for specific sports moves? For example, how do you enforce a sports moves patent? How do you get lost profits or reasonable royalties from the use of a sports move? How do you prove that "but for" the use of your move, the other player would not have achieved their financial success? How can you prove with any certainty the value of the loss of a game? How do you prove irreparable harm? And who would own the patent? The athlete (an employee of the team?) or the team? And is this really the focus of sports teams?

And what about the public? The public thrives on competition in their sports teams, New York Yankees aside. If one team has a patent on a great slam dunk or passing play, then what of competition? Part of the excitement of sports is seeing teams come up with new plays and new ways of playing the game, and seeing other teams catch on to it and improve the process. Wouldn't patenting sports moves hinder that and ruin it for the public?

At any rate, I don't know the answer. I'm against patenting sports moves, but it is an interesting question to ponder.

And a series of law review articles on this topic:

Kukkonen, C A Be a Good Sport and Refrain from using my Patented Putt: Intellectual Property Protection for Sports related Movements (1998)80 J. Pat. & Trademark Off. Soc'y 808.

Smith, J A It’s Your Move- No its Not!: The Application of Application of Patent Law to Sports Moves (2000) U. Colo. L. Rev. 1051.

Weber, L J Something in the Way She Moves: The Case foe Applying Copyright Protection to Sports Moves (2000) 23 Colum.-VLA J.L. & Arts 315.

6 comments:

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generic viagra said...

going to patent?? anybody can do ... sport can do any ... quine had that idea??

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Anonymous said...

here's why, in the case of fosbury: you aren't the most athletic high jumper, but you figure out if you go backwards you get enough of a boost to win. But the more-athletic second place finisher adopts your backwards jump and then wins. While they practice and prepare physically, you went outside the normal parameters and prepared in a unique, novel, and unprecedented way. You overcame your physical limitations. Something as unique as the Fosbury Flop - it would be a shame if he never won using it and it was appropriated by someone else.

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