14/10/2019
On Saturday 12 October 2019, Eliud Kipchoge became the first person ever to run the marathon distance in under two hours, when he completed the INEOS 1:59 Challenge in a staggering 1:59:40.
Kipchoge is the current marathon world record holder, having set his record of 2:01:39 in the Berlin Marathon last year. He also attempted to run a sub-2-hour marathon at Monza motor racing circuit in 2017 as part of Nike’s “Breaking2” project, but ended up missing the target by finishing in a positively sluggish 2:00:25.
Due to the controlled conditions of the one-off INEOS 1:59 event, Kipchoge’s feat will not count as a world record, as the event included athlete assistance that is not allowed under IAAF rules. In particular, Kipchoge was assisted by 41 rotating pacemakers, and was handed his drinks and energy gels from a moving bike so that he did not need to slow down to collect them. Regardless of the lack of IAAF recognition, Kipchoge was determined to break the symbolic 2-hour barrier to make history “like the first man to go to the moon”.
Record-Breaking Technology
At the start of Nike’s Breaking2 project in November 2016, Kipchoge’s previous best marathon time was 2:03:05, and the world record was Dennis Kimetto’s 2:02:57 at the 2014 Berlin Marathon. To break the 2-hour barrier, an already-elite athlete would need to cut almost 7-seconds-per-mile from the then-world-record. Even getting close to this would require a serious step forward in many respects, not least in relation to running shoes.
As part of Nike’s Breaking2 project, Nike developed new shoe technology in cooperation with Kipchoge, culminating in the “Nike ZoomX Vaporfly 4%” shoe that Kipchoge used in the 2017 event at Monza.
The Vaporfly 4% was reportedly engineered to make athletes 4% faster by incorporating a curved carbon fibre plate into the shoe’s midsole, to aid energy return through a runner’s stride without causing cramping. This carbon-plate technology has also been incorporated into more recent generations of Nike’s Vaporfly shoes, and it seems to be working: the five fastest marathons in history have reportedly all been run by athletes wearing Nike ZoomX Vaporfly shoes over the past 13 months.
For a more recent version of the Vaporfly, Nike developed the 3D-printed uppers of the “Nike Vaporfly Elite Flyprint 3D”, which resulted in a shoe 11g lighter than the Vaporfly 4%. Efforts to further reduce moisture retention have subsequently led to the woven TPU and TPE “Vaporweave” upper of the shoe that Kipchoge’s pacemakers wore in Vienna, the “Nike ZoomX Vaporfly NEXT%”.
Kipchoge himself is reported to have run the INEOS 1:59 event in the most-advanced Vaporfly shoes yet: an as-yet unreleased model apparently called the “Nike alphaFLY”.
As well as wearing cutting-edge shoes, Kipchoge is also thought to be wearing advanced drag-reducing clothing, and spent the majority of the race following a pace car that beamed lasers onto the road.
Sports Tech and Intellectual Property Rights
While Kipchoge’s shoes for the INEOS 1:59 were custom tailored for him, Nike will certainly seek to protect the innovations behind the Breaking2 project so that they can take full advantage of this technology not just for elite athletes, but for the mass-market.
Patent applications are not published until 18 months after they are filed, so it is quite possible that the new features of Nike’s latest shoes are covered by patent applications not yet visible on public registers. Even once patent applications are published, it is often not straightforward to confirm definitively whether the technology hidden within the shoe is the same as that described in the patent application.
Based on photos of Kipchoge during the race, however, the “Nike alphaFLY” shoes that he wore look almost identical to those illustrated in an international patent application WO2018144756A1 published on 9 August 2018, titled “STACKED CUSHIONING ARRANGEMENT FOR SOLE STRUCTURE”. The claims of this patent application relate to a sole structure that includes a plate that may be formed from carbon fibre, which is the common feature of the Vaporfly range. The patent application also describes a number of sole structures, including layered midsoles, multiple “plates”, and segmented forefront sections containing cushioning “chambers” under the ball of the foot, which do appear to be present on Kipchoge’s race shoes.
Nike’s extensive published patent portfolio also contains granted and pending protection for a large number of shoe components and foams. It wouldn’t be much of a stretch to assume that some of these “foam” patent rights protect the ZoomX foam used in the soles of Vaporfly shoes.
In 2016, Nike filed an international patent application WO2016179265A1 titled “FOOTWEAR SOLE STRUCTURE INCLUDING A SPRING PLATE”, which was widely rumoured to relate to the carbon plate in Vaporfly shoes. According to one report, however, a senior source at Nike stated that the WO2016179265A1 patent application did not relate to the Vaporfly carbon plate, but instead related to a similar but distinct project.
Nike also files design patent applications (known as registered design rights outside the USA) to protect the appearance of their shoes. US D862,059 S, for example, appears to protect the design of the shoe sole used in the “Nike ZoomX Vaporfly NEXT%” model.
A version of Kipchoge’s race shoes are expected to be released to the public in the near future, but whether every pair manages a sub-2-hour marathon remains to be seen.
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.
