By: Garrett Kelly

image source: https://www.youtube.com/watch?v=mjLDpJIufx0

While waves in the ocean are the product of mother nature, waves in a pool are the product of patent law. Surfing is one of the most unique sports on the planet because in the ocean no two waves are the same. Every surfer dreams of the perfect wave. In 2019, that dream is a reality with the birth of wave pools.

The legal principal behind the American patent law regime is to reward the first person to file their patent with the U.S. Patent and Trademark office with exclusive rights to that patent for ten years.[1] This principle is supported by the utopian idea that by protecting their rights from patent infringement, patent holders are incentivized to disclose their creative ideas for the benefit of society.[2] This disclosure in turn allows others the opportunity to use the patented product, but just as importantly, the opportunity to improve upon the patented product by adding something new and inventive.[3] This principal rationale that governs patent law was best put by Sir Issac Newton who said, “If I have seen further, it is by standing on the shoulders of giants.”[4]

So how does patent law have anything to do with surfing? There are types of patents which are applicable in the context of surfing. The first is a utility patent under 35 U.S.C. §101, which provides patent protection for the specific type in which a patent is used and operates.[5] In order to qualify as a utility patent, the innovation must be the “first of its kind.”[6] In the world of innovation, it can be difficult to create something brand new, therefore patent law rewards patent protection through utility patents even when a minor change is made so long as the change is an improvement.[7] The second type of patent applicable in the surfing context is the design patent under 35 U.S.C. §171, which protects the way a product looks.[8]

The first designers of wave pools took Sir Issac Newtons philosophy to heart. By looking at mother natures patented ocean waves, surfers like Kelly Slater used the same concepts of an ocean wave but improved the wave by adding the one thing the ocean lacks, consistency. Kelly Slater’s knowledge of the ocean is well qualified. He is an 11-time World Title Winner in the sport of surfing and the cofounder of Kelly Slater Wave Company (KSWC).[9] And if his resume isn’t convincing enough, according to Wikipedia he is the greatest surfer of all time.[10]

In May of 2014, Slater and his cofounder Adam Fincham entered the patent race when they officially filed their patent for their wave pool design with the U.S. Patent and Trademark office.[11] The general concept behind the technology used by the KSWC is the unique use of hydrofoils that run down the center of a rectangular pool like a train.[12] The 100-ton hydrofoils are carried by 150 truck tires as they roll down the center of the pool at 18 mph.[13] This inventive process simulates the ocean by driving water toward a shallow sloping bottom, which creates a “solitary wave.”[14] This type of wave is unique in that at the time the technology was patented, it was the only wave that simulated the type of ground swell that a surfer would experience in the ocean.[15] A man by the name of Greg Webber also planned to patent his own design for a wave pool but, by designing a circular wave pool, his technology was materially different and thus did not threaten the KSWC’s patent.[16]

When analyzing the likelihood of satisfying the requirements of what is patentable in the new context of wave pool technology, the factors to consider include wave size, wave riding experience, and wave shape.[17] An analysis of the unique aesthetic rectangular design qualifies the KSWC wave as satisfying design patent while the unique engineering and technology used to create the size, shape and speed of wave using the hydrofoils satisfies utility patent.[18] In October of 2016, the KSWC’s patent was approved and opened the door to new wave pool patents across the globe.[19] Maybe this is the wave that we will see in the next summer Olympics?

 

 

 

[1] Legal Information Institute, Patent, Cornell Law School, https://www.law.cornell.edu/wex/patent.

[2] Id.

[3] Id.

[4] Learning English – Moving Words Sir Issac Newton, BBC, http://www.bbc.co.uk/worldservice/learningenglish/movingwords/shortlist/newton.shtml.

[5] Carly Klien, Intellectual property law in the world of surfing, Surfer Today (Feb. 7, 2019) https://www.surfertoday.com/surfing/intellectual-property-in-the-world-of-surfing; see generally 35 U.S.C. §101 (2018).

[6] Id.

[7] See id.

[8] Id.; see generally 35 U.S.C. §171 (2018).

[9] Lauren Goode, Kelly Slater’s Artificial Surf Pool Is Really Making Waves, Wired (Sept. 2018, 7:00).

[10] Kelly Slater, Wikipedia, (Nov. 2, 2019) https://en.wikipedia.org/wiki/Kelly_Slater.

[11] Bryan Dickerson, Can You Patent a Hunk of Metal that Runs Down a Track?, Wave Pool Mag (Sept. 23, 2019) https://www.wavepoolmag.com/can-you-patent-a-hunk-of-metal-that-runs-down-a-track/.

[12] The Facts and Figures Behind Kelly Slater’s Surf Ranch, Surfer Today, https://surfertoday.com/surfing/the-facts-and-figures-behind-kelly-slater-surf-ranch.

[13] Id.

[14] See Dickerson, supra note 11.

[15] See id.

[16] Id.

[17] Id.

[18] Klien, supra note 5.

[19] See id.