Athletic training systems in russia versus us: patenting laws and experiences

Associate Professor, PhD E.V.Titova1
Associate Professor, PhD N.S. Koneva1
Associate Professor, PhD O.V. Dubrovin1
1South Ural State University (National Research University), Chelyabinsk

Keywords: sport training methods, patenting law, sport copyrights, sports law.

Background. Modern professional sports, with their multiple individual and corporate interests and growing competitiveness, are increasingly demanding for intellectual products and innovations for further progress, since the athletes work hard to expand their competitive schedules, increase the scopes and intensities of trainings and make resort to multiple experiments to gain an advantage over their competitors [2, 1]. These multiple goals and interests determine the scope of the copyright protection in modern sports including: (1) the broadcasting, trademark and sports-associated copyrights and the new technology patenting rights; and (2) legal protection of the newly designed training practices/ provisions [13] by mostly the patenting laws.

Objective of the study was to find the best legal ways to defend the intellectual copyrights for the newly designed/ updated athletic training systems/ models.

Methods and structure of the study. We analyzed for the purposes of the study the existing legal frameworks for the athletic training system patenting in Russia versus the US and some other nations, with an emphasis on the patenting procedures and their deficiencies.

Results and discussion. The Ministry of Sports Letter #ПН-05-10/5493 of 27.07.2017 “Practical recommendations to improve the intellectual copyrights (authors’ and associating rights) and individual assets in the national physical education and sports sector” provides a framework for the sport training models being protected in the same way as the other inventions. As provided by the Civil Code of the Russia Federation Article 1350 item 1, “qualified and protected as an invention shall be every technical solution in whatever field related to a product (interpreted as device, substance, strain of microorganism, cellular structure of a plant or animal) or method (interpreted as an action to modify a material item by material means)”. Therefore, a training method shall be qualified either as a technical solution or method i.e. action to modify a material item by material means. Let us first of all consider the provisions for a new sport training method being qualified as a method i.e. the action to modify a material item by material means.

The Russian patenting policies and practices offer a wide range of both negative and positive precedents for the above legal matter. Thus once the national patenting agency refused to patent a High Jumping Technique (see Annex to the Federal Copyright Protection Service (FCPS) Verdict #2011150120/12 of 09.09.2014) for the reason that “… the proposed solution lacks a technical basis… and the innovation proposed by the applicant implies a sequence of actions only’. In the other case, the FCPS issued Patent #2115453 (MKL А63В 23/00) of 1998 for the Body Build Correcting Training Method “Shaping” that includes a set of physical anabolic and catabolic practices customizable to the heart rate (HR) and the aerobic/ anaerobic metabolic thresholds, with application of 4min muscular endurance tests and special diets.

The second of the above patenting options for a training method – i.e. its qualification as a technical solution – may be beneficial albeit more complicated. On the one hand, technique may be defined as the set of body conditioning methods and tools – for the reason that this approach is widely applied in the medical technology patenting practices – with a special attention to the fact that the body conditioning action must be material and the action outcome predictable. Specific patenting difficulties are due to the fact that a training method may be interpreted as the practical skill(s) mastering process or improvement of some movement sequence (technical excelling) or physical qualities and physical fitness. On the other hand, the modern sport theory differentiates the mental and tactical components in the training process with their respective special objectives. In addition, there is always the question if the training method may be qualified a technical solution or modifying action, action sequence or education technology. It should be mentioned that it is beneficial to define a training method as the educational technology as verified by many foreign practical patenting experiences. For example, protected by foreign patents are the ‘golf ball handover method’ [5]; ‘fitness method’ [6]; ‘baseball pitcher (attacker) training method’ [7]; and the golf ‘training seesaw method’ [8]. Since the Russian patenting laws a still deficient in this respect, the Tadeush Kasyanov’s Training Method (modern combat sport technique excelling tool), for instance, was certified (Certificate #542719) as a trademark, not as a patent.

The need to meet the requirements of the Civil Code of the Russia Federation Article 1350 item 1 force the national patenting agencies to patent sport training methods either as the technical tools application methods or inventions in sport medicine. Ranked with the first group, for example, is Patent #2265469 that certifies the sport training method that implies sensors being fixed on the athlete’s muscles to read phased electric activity, with a computerized data flow processing. The athlete performs cyclic movement sequences with the flexor/ extensor muscles as required by the sport-specific movement patters; with the sensors being fixed on the core active muscle groups whilst the antagonist muscles are activated by electric impulses controlled by computer receiving the data flow from the sensors; with the athlete required to act against the resisting antagonistic muscles and keep the defense postures dictated by the computer or coach. Ranked with the second group may be Patent # 097350 (Class А63В 21/00) “Athlete’s muscular system training method”; and Patent #635995 (MKL A61N, 1/36) “Neuromuscular apparatus stimulation method”.

As things now stand in the USA, an athlete may patent either a competitive sport method (e.g. a tennis racket or baseball hold) or sport training technique including e.g. a special diet or power training procedure [2]. Having a patent for the invention, the athlete may apply it on his/her own discretion and prohibit the method being applied by the other athletes; or permit such application on a commercial licensing basis. A sport team may patent a sport method or training technique and thereby prohibit the other teams using them. A professional sport league may patent a competitive sport method or a sport training technology. As provided by the valid patenting laws of the US, the following items may be patented: process, machine, production technology, composition of a substance, plants [11]; business methods [12]; living organisms [3]; surgical technologies [9]; and sports methods [10]. We believe that it is the wide notion of ‘sport methods’ in the modern national patenting doctrine that makes it possible for the US to protect the competitive sport methods and sport training technologies by patents.

Conclusion. The existing national legal provisions for the athletic training system patenting practices need to be updated, clarified and substantiated by the relevant theoretical and legal grounds including the terms, definitions and comprehensive lists of copyrights. The study data and analysis showed a high promise of the relevant scientific research initiatives to address both the athletic training systems and legal framework to provide a sound practical basis for the patenting activity facilitation in the national physical education and sports sector.

References

  1. Lubysheva L.I., Zagrevskaya A.I., Peredelskiy A.A. et al. Sportizatsiya v sisteme fizicheskogo vospitaniya: ot nauchnoy idei k innovatsionnoy praktike [Sportization in physical education system: from scientific idea to innovative practice]. Moscow: Teoriya i praktika fizicheskoy kultury i sporta publ., 2017, 200 p.
  2. Derek Bambauer. Legal Responses to the Challenges of Sports Patents. Harvard Journal of Law & Technology, Volume 18, Number 2 Spring 2005.
  3. Diamond v. Chakrabarty, 447 U.S. 303, 318 (1980).
  4. J.E.M. AG Supply, Inc.v. Pioneer Hi-Bred Int”l, Inc., 534 U.S. 124, 145 (2001).
  5. U.S. Patent No. 5, 616, 089 (issued Apr. 1, 1997).
  6. U.S. Patent No. 6,190,291 (issued Feb. 20 2001).
  7. U.S. Patent No. 5,639,243 (issued June 17, 1997).
  8. U.S. Patent o. 6,176,790 (issued Jan. 23, 2001).
  9. U.S. Patent No. 5,080,111 (issued Jan. 14, 1992).
  10. U.S. Patent No. 5,616,089 (issued April 1, 1997).
  11. Plant Variety Protection Act of 1970, 7 U.S.C. § 2402 (2000).
  12. State Street Bank & Trust Co. v Signature Fin. Group, 149 F. 3d 1368, 1370 (Fed. Cir. 1998).
  13. Titova E., Ostanina E. (2018). Sports training as the object of intellectual property rights. HUMAN. SPORT. MEDICINE., 18(3), 69-76. Doi:10.14529/hsm180307

Corresponding author: cherepov.e@mail.ru

Abstract

Objective of the study was to find the best legal ways to defend the copyrights for the newly designed/ updated athletic training systems/ models. We analyzed for the purposes of the study the existing legal frameworks for the athletic training system patenting in Russia versus the US and some other nations, with an emphasis on the patenting procedures and their deficiencies and challenges.

Having analyzed the reports and practical experience of RosPatent agency, we found that the valid national legislation offers only two ways to patent an athletic training model: either as a technical solution or an action of one material object on the other. Neither of these frame procedures appears perfect enough, nor guarantees due legal protection for a training system viewed as the sport-specific competitive skill mastering know-how; or movement technique excelling method; or the physical qualities/ physical fitness advancement procedure. Based on the study data, we believe that the existing national legal provisions for the athletic training system patenting practices need to be updated, clarified and substantiated by the relevant theoretical and legal grounds including the terms, definitions and comprehensive lists of copyrights. The study data and analysis showed a high promise of the relevant scientific research initiatives to address both the athletic training systems and legal framework to provide a sound practical basis for the patenting activity facilitation in the national physical education and sports sector.