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Controversial Running Shoe At Center Of Recent World Athletics Decision

on Thursday, 20 February 2020 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

World Athletics, the international governing body for track and field and other competitive running disciplines, issued a pivotal ruling late last month that allows one of Nike’s controversial VaporFly models, the Next%, to be used in international competition, including the 2020 Tokyo Olympics.  The World Athletics decision imposes restrictions on future shoe technology developments. 

Nike’s VaporFly prototypes became the center of a heated debate within the running world in connection with a streak of the fastest marathons in history being run in different prototypes of the shoes.  These record setting performances include the world’s first sub-2 hour marathon, run by Eliud Kipchoge in October 2019, and the women’s world record performance of 2:14:04 by Brigid Kosgei on October 13, 2019, where both competitors are believed to have run in a next generation VaporFly recently dubbed the AlphaFly. 

Nike markets its VaporFly as a shoe with unprecedented energy return, and it is this energy return that is the heart of the controversy.  During running, energy, primarily in the form of heat, is lost with each foot strike.  One feature the VaporFly provides is the minimization of this energy loss, instead storing and returning the energy to the runner as he or she continues through the stride.  By all accounts, the VaporFly line has achieved this energy storage and return in an unprecedented manner, with studies demonstrating a four percent increase in running efficiency.  So how is this shoe able to achieve such unprecedented results?  The answer is through a combination of materials, namely Pebax (polyether block amide) foam and a carbon fiber plate in the shoe’s midsole, both of which have legal proprietary protections in place.

Pebax foam is a patented technology owned by Arkema, a French chemical company.  Though it appears Arkema has not widely excluded access to this technology, as its Pebax foam is found in a number of shoe brands.  The carbon fiber plate appears to be Nike’s own proprietary creation.  Nike has pending patent applications for its shoe sole that focus on the carbon fiber plates, where these carbon fiber plates purport to function as a spring plate.  In the event that Nike’s patents issue, it will have the ability to control the claimed shoe sole design, and even exclude other shoes companies from manufacturing infringing shoe sole designs. 

This all begs the question of whether these shoes should be excluded from international competition.  While this article does not have an opinion on that answer, as it depends on philosophical questions of the nature of competition and their juxtaposition to legal monopolies provided by patents, World Athletics has provided an initial answer to the question—and the answer is in the affirmative, but with a couple of caveats.  The recent decision by World Athletics provides that shoes allowed in international competition may not be prototypes and after April 30, 2020, must have been available on the market for at least four months before use in competition.   Moreover, there is an indefinite ban on new shoes have a sole thicker than 40 millimeters and more than one rigid plate.  This decision means that Nike’s VaporFly Next% will be allowed in competition, although its prototypes or other variations, even if sold on the market, having thicker sole or more than one carbon fiber plate, will not be permitted.

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