25/03/2015
In the aftermath of the season-opening Australian Grand Prix, many Formula One teams will be working frantically to iron out technical problems in the hope of catching Mercedes, whose cars cruised to a 1st and 2nd place victory in Melbourne. With the slower of their two cars finishing more than 33 seconds clear of their nearest rival – Mercedes the winners of the 2014 Constructors’ Championship – currently appear to boast a vast technological superiority over the rest of the field.
Mercedes’ continued dominance raises an interesting question: in a sport where constructors are constantly vying for the slightest technological advantage over their rivals, what role, if any, do patents play in securing the position of a given team?
One might expect that, in order to gain the maximum benefit from their innovations, Formula One constructors would be keen to patent every invention that they come up with. Not only would this let the constructor prevent rival teams from applying the patented technology, they could also reap the potential financial rewards if the invention ended up being commercialised in the next generation of road vehicles.
Despite these apparent advantages, however, there seems to be a curious lack of patent litigation in Formula One.
Are Patents In F1 Just Not Cricket?
This issue has previously been contemplated by James Allen, the BBC News F1 Correspondent, in his blog. Allen quotes “a senior F1 engineer,” who states that “The lack of patents in F1 is quite simple. It’s because if a team takes out a patent on a design, that then locks in an advantage the other teams cannot access. Therefore the other teams will simply vote it out through the FIA Technical Working Group process by the end of the season in question.”
Based on this account it seems that regulatory considerations, rather than a desire to remain sportsmanlike, may well explain the lack of litigious patent enforcement in Formula One. Other practical considerations may also militate against the usefulness of patents as competitive weapons in F1; for example the length of time required to obtain a granted patent. Given the rapidly evolving nature of Formula One technology, it is possible that by the time a patent reaches grant, the technology to which it relates may be virtually obsolete at the top level.
Trade Secrets
The engineer quoted in Allen’s blog goes on to suggest that Formula One teams prefer to rely on keeping their technology secret from their competitors (as so-called trade secrets) in order to protect their innovations.
While trade secrets undoubtedly play a large (and oft-litigated) part within Formula One, they would offer little or no protection if a constructor wished to commercialise F1-originating technology outside the sport. The only way to ensure robust IP protection for this purpose would be to protect the technology in a patent.
Going Off Track
It is important to note that, just because constructors are not suing their competitors for patent infringement does not mean that they are neglecting to file patent applications in the first place. After all, it would presumably be possible for a constructor to patent an F1-originating invention and offer a royalty-free licence to competitors within F1, while reserving the rights to the patented technology in other areas. It seems unlikely that the business minds behind Formula One have not contemplated the potential benefits of such an arrangement, even if patents are of limited use in the sport itself.
Searching for and identifying F1-originating patents is made difficult by both the extended company structure of many of the constructors, and the secrecy surrounding the exact technology used on each car.
One well-publicised and identifiable example of technological innovation in F1 may be found in the Kinetic Energy Recovery Systems (KERS) that were first introduced to the sport in 2009. KERS recovers and stores the kinetic energy usually lost through braking, recycling it on demand to boost power and reduce fuel consumption. Several different KERS systems have been developed for use in F1, with one version having been developed and patented by Williams Hybrid Power (GB2469657B inter alia), a division of the company that owns the Williams Formula 1 team (now Williams Martini Racing). On the back of its patent portfolio, Williams Hybrid Power was sold in 2014 for a reported £8m, and its KERS technology is currently being adapted for use in public transport.
While KERS is just the tip of Formula One’s technological iceberg, this seems at least to indicate that F1 constructors are indeed alive to the possibility of patenting their inventions in order to commercialise them outside motorsport.
Formula One has found success by maintaining a balance between sport and business, between driving skill and technological excellence. For the sake of the fans and sporting fair-play, it may well be preferable that patent enforcement does not interfere with this balance. It seems likely, therefore, that the upcoming battles between Team Mercedes and its rivals will be fought on the track, and not in the patents courtroom.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.
