Although the weather might not yet be cooperating, the Grand Prix and Formula 1 racing in Montréal this weekend is the first real confirmation for many of the start of summer.  As an IP attorney, that got me wondering about intellectual property protection and Formula 1.  Yes, I know that probably makes me pretty pathetic, but I will also be out enjoying the vibe.

Are the teams fighting it out in the patent office as well as on the racetrack ?  I asked my colleague Alain Deschamps to find out, who I thank for his terrific help in putting the following explanation together.

Formula 1 is an ongoing technological battle between teams vying to extract every possible advantage from their machines in the hopes of achieving a minute advantage over their competitors.  This intense competition is mirrored in other high-tech fields – telecommunications and pharmaceuticals come to mind – where patents are used extensively to protect hard-won technical  and scientific innovations.

I expected that this would also be the case in Formula 1.  So I was surprised to learn that it is not (perhaps confirming that I don`t really know much about F1 – although I have attended the Grand Prix). As a result, the complex patent litigation that plays out in the U.S. telecom sector (witness the Apple v Samsung fights which have been raging over the past several years) and in Canada for pharmaceutical patents is absent for Formula 1.

One explanation for the curious absence of patent litigation in Formula 1 has been explored by James Allen on his F1 blog. He quotes a senior F1 engineer who explains that “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.”

Further, James Allen reports that, “by keeping a new design in the game, a team can gamble that they can do a better job on a design than another team. Examples like seamless shift gearbox & inertia dampers are good ones. If these were patented by F1 teams, then they would have been wiped out.”

Given that Formula 1 typically involves prototype cars, which are not manufactured for commercial sale, the benefit of patent exclusivity to provide an advantage in the marketplace is less evident.

There are other practical explanations which would also explain the absence of patents. For one, obtaining a patent for an invention takes time, meaning that the technology would likely become obsolete in the Formula 1 environment by the time that the patent is granted.

Also, a patent is a bargain by which exclusivity for a time is obtained for the disclosure of innovation. In the context of Formula 1, where races are sometimes won by milliseconds, every little advantage counts. Therefore, there is a clear incentive to keeping a new invention “in-house”, rather than disclosing it to the public.  Formula 1 teams prefer to rely on what are commonly called “trade secrets” in order to protect their technical advantages. However, this approach has an obvious drawback in that requires that the confidentiality of the information be maintained, which is challenging in this communication age.

Formula 1 teams do obtain patents for their technical innovations, but these are usually for inventions which have relevance in a commercial context, such as technology with application to production cars: see McLaren`s patent US 6168545 B1 for geared automotive differential mechanisms to transfer torque to the wheels.

Another example where the innovation would have commercial application outside of Formula 1 is the telemetry and data innovations developed by McLaren Applied Technologies.  In Formula 1, this technology has been used in the Standard ECU’s (electronic control units).  McLaren Applied Technologies  has broadened the application of these to diverse settings like children hospitals and London’s Heathrow Airport.   These sorts of commercial applications should foster a greater attention to patenting.

Enough with intellectual property law.  Time to get out and join the crowd on Crescent Street.

thanks Alain Deschamps for his precious collaboration.