Discussing the Feasibility of Patenting Sports Moves in India

Discussing the Feasibility of Patenting Sports Moves in India

Abstract

The world of sports is not just about going on the field or court and doing your best, rather every step is governed by the laws, rules and regulations that every sportsperson has to abide by. From getting sponsorship to complying with the rules of the game, everything comes under the purview of the Contract Law.

Through this article, aims to discuss the reasons for recognition of patentability of sports moves by the courts and the laws of the United States of America, where this need was already understood a few decades ago, and seeks to discuss the applicability of their rationale to the scenario in India, where the scope and popularity of sports is growing at a rapid rate.

The factors of innovation and skill required in sports are the drivers behind the idea and concept of providing protection to sports moves under Intellectual Property. The unique physical expressions of the player can be taken as an invention or even a form of art, exclusive to the player and his capabilities. It has therefore been contemplated to afford legal protection to the creator of these expressions under the law, to preserve their uniqueness and also safeguard the rights of the creator.

Sports have been played and practiced since ancient times, comprising of numerous forms and games, utilizing a combination of set rules of the game along with the abilities of the players, to make it an engaging activities for all participating players, spectator, and the involved nations themselves.

Introduction

In India, the importance of sports has risen to a level above mere entertainment. International sporting events are followed by a large chunk of the population, and some sport or game is played in every gully and by-lane of India. Different kinds of sport are watched in the various states in India, but the form of traditional sports which has the most viewership and following has to be cricket, which has transformed it into a lucrative commercial undertaking from a recreational activity. The relevance of sporting moves and techniques which are unique to the respective players can be understood by the fact that even non-followers of cricket would know Malinga for his bowling, or Neymar Jr. for football.

The United States has however been well ahead in this regard, and has already considered these possibilities since the nineties. For instance, Jack Charron has already patented a golf putting technique utilizing the player’s dominant hand for better control and direction in 1997. In the same year, Leonard Schwarz patented an isometric exercise combination for more effective training. A training device was developed and patented by Eric and Mark Williams in 2001 for training baseball pitchers, which deals with their position and delivery. In all these cases, the patent protection would warrant the creator to restrict others from making use of his invention, and if any athlete must make use of it, he must do so with the permission of the creator, and in exchange of a compensation.

Indian Standards of Patentability – Do Sports Moves Make the Cut?

An understanding of the Indian Patent Act, along with knowledge of the approach so far adopted by Indian courts, makes it clear that Indian laws afford for a much higher standard of requirement to consider an invention eligible for patent protection, which go beyond the mere requisites of novelty, inventive step and industrial application, whereas the standards are more lenient and flexible in the USA .The Indian law and judicial approach does not really consider this angle. The Indian courts believe that imitating an established style or technique in sports by other players is actually a way of improving the game itself, and is done with good and fair intention of improving personal performance as well as bettering the manner in which the game is played.

This also threatens the ‘novelty’ and ‘inventive’ aspects of sports moves, which are anyway performed in the public domain and are comprised of a finite combination of limb and muscle movements. As per Article 27 of the agreed standards concerning the availability, scope and use of Intellectual Property Rights under the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), “A patent should be novel or new in light of the prior art, which includes all the information and the knowledge relating to the invention that was available on the date of the patent application.”

The Aspect of Industrial Application as a Hurdle

Another important point to consider is that Indian patent law enlists industrial application as a crucial aspect. The landmark case of Dimminaco AG v. Controller of Patent has since its declaration made sure that the definition of ‘invention’ under Indian patent law is interpreted keeping the term ‘industrial application’ in mind, as it has been defined under Section 2(1)(j) of the Indian Patent Act.

The fulfilment of the third criterion creates problems in its application to the world of sports and related sporting activities. Also, considering the second criterion, the only field of activity wherein a sports move would be useful is the field of sports itself. However, Section 3(m) of the Indian Patent Act states explicitly that “a mere scheme or rule or method of performing mental act or method of playing game” cannot be patented. There have not been any significant judicial pronouncements regarding this section as of yet, it can thus be argued that this section completely erases the possibility of any sports move from being patented under Indian law.

Conclusion

It can therefore be understood from an analysis of the prevalent scenario in India that a mere fulfilment of all criteria for patentability is not enough to bring sports moves under its protection. Further, even if it is argued that a particular sports move meets all criteria of nonobviousness, novelty and also somehow industrial usage, the Indian patent law does not allow patents with social impacts, and patenting sports moves leads to financial gains to some at the cost of others, along with a reduction in quality and fairness of the sporting activity as a whole. In the near future, even if the Indian law does afford patent protection to sports moves, this decision would need the assent and active support of all commercial leagues and organizing bodies. The government will also have to come up with a private law remedy to all arising issues, since the government will not willing to deal with personal violations unless the competition or the entire sport is impacted or a huge loss of revenue occurs.