ARTICLE
Footwear Innovation: Nike’s Super Shoes N
ike’s “Fly” shoe range is well known for helping to break several world records. The superiority of the shoe gained media attention in 2019 when Eliud Kipchoge broke the marathon word record, dipping under the elusive two-hour barrier wearing a prototype called ‘Alphafly’. The introduction of Nike’s game-changing shoes has Author: Marco Verch; Source: https:// raised a number of interesting www.flickr.com/photos/160866001@ questions, ranging from N07/48896989181/in/photostream/ Licence: https://creativecommons.org/ whether the revolutionary licenses/by/2.0/ technology should be considered a form of “technological doping” and the resulting ramifications for the World Athletics regulations; through to considerations about how to protect the technology. How are these trainers different to regular running shoes? The technology, taking some ideas from aerospace innovation, has taken years of development. The trainers comprise of a super-light, Source: Nike’s European Patent Application thickly cushioned sole EP3771358A1. integrated with a carbon-fibre plate, along with two layers of fluid or foam-filled chambers under the ball of the foot. Together this results in an ultraresponsive shoe, enhancing running efficiency through greater propulsion, which translates into improved performance. Effectively the shoe acts as a “spring” for athletes, providing a mechanical advantage in competition. Critics have gone as far as to say wearing the shoe amounts to “shoe doping”, providing athletes with an unfair advantage. Role of regulations The attention generated by this shoe resulted in the international governing body for the sport of athletics, World Athletics, amending the rules around the specification of shoes used in competition.
The new regulations ban the use of trainers that incorporate a sole thickness greater than 40mm, and require that any shoe used in competition must have been available for purchase on the open retail market four months beforehand. Nike’s ‘Vaporfly’ appear to comply with these requirements as they have a sole thickness of 39.5mm. Given the extensive technology and innovation behind such shoes, it is no surprise that Nike have sought to protect such technology by the filing of patents. To succeed with its applications Nike will need to show the technology it describes is both novel and a significant inventive step beyond what was publicly known before. Once granted, Nike would effectively have a monopoly over the technology afforded protection by virtue of the patent. During the lifetime of the patent Nike would be able to prevent its competitors from operating within the scope of their patent claims, even if such competitors developed such technology independently. Given the value afforded to a patent there is enviably a race to be the “first to file”. Patents: The race to file Given the backdrop of the new regulations, Nike must innovate within the technical confines imposed by World Athletics and the relevant laws concerning patents. If Nike’s shoes are sold before a patent is filed this may result in the shoes becoming prior art, and therefore no longer new. This could be used to defeat a patent application. It is therefore critical that before releasing any shoes for sale, a patent application is filed first. Given the rise in sporting technology, it is important that innovators think carefully around the timing of launch of new products and the securing of their IP rights.
Lucy Marlow
Senior Associate JMW Solicitors LLP If you have any questions over the IP rights in your products, please do not hesitate to contact JMW’s Lucy Marlow (lucy. marlow@jmw.co.uk).
CENTRAL LONDON LAWYER | 23
