Legal Responses to the Challenges of Sports Patents

Derek Bambauer, Brooklyn Law School

Abstract

Sports patents are a nascent problem. Attorneys are already urging competitors, including players, teams, and leagues, to protect their advances in technique. Yet as sports patents multiply, they present a serious challenge for professional sports. To succeed, professional sports require competitive uncertainty — if the outcome is not in doubt, viewing or following sports becomes far less entertaining and attractive. Sports patents threaten to dissipate that uncertainty and hence could undermine revenues for and the fan base of professional sports. Maintaining competitive balance in the face of sports patents will likely require a response at both levels of sports law: private law regulation by leagues, and public law regulation by Congress, the U.S. Patent and Trademark Office (“PTO”), and federal courts. This Article first examines the potential effects of increased patenting of sports techniques on professional sports and possible responses by public and private regulators. Next, it looks at the sports industry setting and discusses why professional sports revenues are particularly vulnerable to rent-seeking by patent holders. The Article then briefly reviews relevant patent doctrine to demonstrate the requirements necessary to patent a sports technique. It analyzes the policy implications of sports patents and concludes with suggestions for both private and public law measures remedying potential harms from these patents.