19/02/2021
On 22nd August 1851, a single schooner from the New York Yacht Club triumphed over half a dozen British yachts in a sailing race around the Isle of Wight. Queen Victoria looked on, and was reportedly not amused with the result. The winning yacht was awarded a silver jug, which became known as the America’s Cup.
The ‘Auld Mug’ is the oldest trophy in international sport, and the 36th America’s Cup regatta is due to take place next month. The qualifying rounds are currently being raced off the coast of Auckland, New Zealand, and this patent attorney has been watching the action.
A Class Above
The 75 foot long foiling yachts being raced in New Zealand have about as much in common with their 19th century predecessors as a Formula 1 car has with a Citroën 2CV. The AC75 racing yachts ‘fly’ out of the water on impossibly thin hydrofoils (or ‘foils’) reaching speeds of almost 60 mph, using nothing but wind. Just take a look here. The similarities between the America’s Cup and the world of motorsport do not stop at the blistering speed. Much like Formula 1, the yacht designs must conform to a set of strict rules (the ‘class rule’) set by the winner of the previous Cup. The America’s Cup is as much about design and innovation as it is about prowess on the water.
Since this class of yacht has never been raced before, there is no precedent for the best way to set up the boats. As a result, the yacht designs have diverged significantly as each team made what they consider to be the fastest yacht within the class rules. Defender ‘Emirates Team NZ’s’ hull shape is sharper than challenger ‘NYYC American Magic’s’. ‘Ineos Team UK’s’ foils have a large delta-wing shape with an area about 50% larger than the foils of ‘Emirates Team NZ’. The teams have even divided the roles of their allotted 11 crew differently with ‘Ineos Team UK’ including a dedicated tactician to look for advantageous wind shifts, while ‘Luna Rossa Prada Pirelli’ (the Italian Challenger of Record) has opted to have two helms, one for each tack. This results in four very different yachts, and some fantastic racing.
Sailing Close to the Wind?
The development process itself was not without intellectual property controversy. Last year, a patent family deriving from WO 2017/083947 A was brought to the attention of ‘Emirates Team NZ’, the defender and race organiser. WO 2017/083947 A is in the name of Manoel Chaves, a Brazilian naval architect and boat builder, and conveniently has been granted in New Zealand (NZ740860). The patent is directed to a ‘system for propelling and stabilizing a sail boat’ comprising lifting ‘wing keels’ actuated by hydraulics. The assertion of Mr Chaves is that the movable foil system of the AC75s ‘was copied (or at least inspired)’ by his ‘stabilizing system’. Apparently Mr Chaves is seeking recognition for his contribution and is considering legal action for patent infringement. Leaving aside the question of whether such a claim would be successful, it could put the other three challengers in a curious positon. After all, they were obliged to follow the class rule drafted by ‘Emirates Team NZ’, one wonders where any liability would lie. ‘Emirates Team NZ’ have publicly rejected any allegation of infringement.
This isn’t where the Cup’s link to the world of IP ends. In the run-up to each America’s Cup, disputes over how various teams have interpreted the rules are common. These disputes have often ended up in court. In an effort to pour oil on troubled seas, for the 32nd running of the Cup, the World Intellectual Property Organisation (WIPO) was asked to facilitate mediation and arbitration between disgruntled teams. For the current event, WIPO have stepped in as arbiters on 18 occasions, the most recent of which concerned an assertion by team ‘Luna Rossa Prada Pirelli’ that a particular component of their competitor’s yacht, the ‘running backstay’, was incorrectly positioned during racing. More information on this WIPO service can be found here.
Making Waves
The world of Formula 1 is often credited for developing technologies which eventually trickle down to the cars we mortals drive; regenerative braking springs to mind. The sailing world is no different. The AC75 includes a unique double soft-skin sail to improve the aerofoil shape. It is surely only a matter of time before these become the standard in sailboat racing, and even high end private cruisers.
Moreover, the America’s Cup has undoubtedly accelerated the efficiency and prevalence of hydrofoils. Not so long ago, hydrofoils were unsightly scaffolding-like structures bolted onto the bottom of some fast ferries. On the back of technology developed for the America’s Cup, the future promises more elegant and more efficient foils. They could go some way to reducing the carbon cost of shipping; if the hull is out of the water, it is not causing drag. More excitingly, boat builders are already developing luxury foiling cruising yachts; essentially an AC75, with a hot tub. Some of the most striking examples are from Nemesis Yachts here.
Back in New Zealand, the battle for the ‘Auld Mug’ continues this weekend, with the final scheduled for March. I would urge you to take a look.
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 any action in reliance on it.
