The “Tech Suit” Controversy of 2009: How Patents Shaped the Market for Competitive Swimwear

As a former competitive speed swimmer, I have long been interested in racing swimsuit technologies, particularly the “tech suit” controversy of 2009. I used this project as an opportunity to investigate if and how IP law shaped the tech suit controversy, and how Speedo went from a position of market supremacy in August 2008 to a pariah by August 2009.

The History of Technical Racing Suits

Those unfamiliar with swimming may not realize that our equipment is very technical. Racing swimsuits are highly engineered to be hydrodynamic, compress muscles for added performance, and even assist with buoyancy. The first patent for a hydrodynamic racing suit was filed in 1967 by Leslie C. Cahan.[1] Cahan noticed the problems with existing loose cloth suits, and patented a more tightly fitting and porous swimsuit for women.[2] Rudimentary hydrodynamic suits were employed for the first time by the East German women in the 1972 Olympics, and at this competition, 21 out of 22 world records were broken using new nylon and elastane based suits.[3]

Swimsuit technology remained largely stagnant until the late 1990s, when Speedo innovated in two capacities. They began to experiment with materials more hydrodynamic than human skin, and more tightly fitting garments that minimize resistance from tissue being pulled through the water.[4] The result was the first Speedo Fastskin, which used technology patented in both the United States and Europe in 2000.[5] Speedo’s early attempts at hydrodynamics were innovative but largely ineffective; however, compression proved a crucial advantage, and in both the 2000 and 2004 Olympics, Fastskin suits were used by a majority of competitors in world record setting performances.[6]

At this time Speedo had few meaningful competitors, and it appears that IP law played a minimal role in the industry. The only other patent I was able to find is for Adidas’ full-body swimsuit.[7] This patent post-dates the Speedo patent, and also describes a compression-based suit, but athletes generally considered the Adidas suit an inferior product.[8] TYR also produced a somewhat popular high-performance suit, but chose not to patent their technology, instead filing a trademark for the suit’s core technological innovation, “tripwire” compression.[9] Trademark only protects the name and visual components of the design, and so this would do nothing to protect any technical innovation related to the compression seams. It is unclear whether other companies failed to produce suits that could compete with Speedo’s technologies because of their patent, or for other reasons, but throughout this period Speedo had a stranglehold on the market.

The LZR Racer

In the leadup to the 2008 Olympics, Speedo unveiled a new technology that would change the sport forever – the LZR Racer. Collaborating with NASA, and other research institutions, Speedo developed, patented, and trademark protected the first “tech suit.”[11] This suit was constructed with thermally bonded seams to remove resistance, used new compounds that were truly hydrophobic, and added polyurethane panels for far greater compression and increased buoyancy.[12] Athletes from around the world scrambled to get their hands on the suit, including athletes under contract with other brands, who invariably found their way into Speedo suits by the Games.[13] At the 2008 Olympics, swimmers using the LZR “set 23 out of 25 world records, won 94% of the races, and 89% of the medals.”[14] This suit was so dominant, that in May 2008 fellow swimsuit manufacturer TYR filed an  unsuccessful restraint of trade lawsuit against Speedo.[15]

However, while TYR chose a legal route, other swimsuit manufacturers were driven to innovate. Inspired by Speedo’s incorporation of polyurethane panels, competitors Arena and Jaked both produced suits made entirely of polyurethane, with Jaked filing a patent for the technology in late 2008.[16] By 2009, the script had flipped for Speedo; at the 2009 World Championships nearly all athletes were wearing Jaked or Arena suits. Notably, Speedo did not undertake any litigation with respect to the LZR patent, even against Arena who did not patent their suit. This is likely because it had the requisite novelty to avoid infringement.[17] This illustrates that, while patents may have hindered the development of pre-2008 swimsuits, Speedo’s patented LZR technology provided the fuel for the fastest swimsuits ever designed.

Image sources: The Speedo LZR, European Patent EP 1935265B1, and Jaked’s Full Polyurethane suit, European patent EP 2204101A1.

The Tech Suit Ban of 2010

In 2008, the swimming community began to grow concerned with the number of world records being broken, along with the increasing cost of high performance suits, which ran as much as $600 CAD.[18] 2009 was the breaking point, where an unbelievable 43 world records were set, some of which still stand in 2024.[19] As a result, the swimming governing body, FINA, limited swimsuits by coverage, and to textile materials.[20]

A Post-Ban Innovation Explosion

Following the ban of the tech suits, Speedo quickly regained its market advantage, releasing the first textile “tech suit.”[21] However, in the years that followed, the ban has led to an increase in innovation and competition in the market. Since 2010, I was able to find 14 unique racing swimsuit patents filed by TYR, Speedo, and Arena, for technologies such as carbon fiber-based compression, targeted compression bands designed to reduce fatigue, and novel ways to seal off the back of women’s swimsuits.[22] In the present regime, where technology is limited by regulation, companies have undertaken far stronger efforts to protect their technologies. The result has been an explosion of competition in this fickle market: from 2010-2024 dominant market share has shifted between manufacturers, with each shift following the release of a new technology.[23]

Image source: US Patent US11246357B2.

A Happy Ending for Manufacturers and Athletes

After 2009, there was a consensus that the world records set using tech suits may never be broken. However, since the ban, only eight of forty-two tech suit world records remain. While it is debatable how much of this is human improvement, suits have certainly closed the gap. While textile suits do not match the speed of the fully polyurethane X-Glide, in some metrics such as targeted compression and water repellency, they may exceed it. Perhaps in a world without patents, we could even create a textile suit using a combination of new technologies that surpasses the rubber suits of 2009.

 

[1]  Sarah C. Rich, “The End of Swimsuit Design Innovation” online: (2012) Smithsonian Magazine. https://www.smithsonianmag.com/arts-culture/the-end-of-swimsuit-design-innovation-2770368/.

[2] Ibid.

[3] Jenny Johnson, “How to Engineer a Record-Breaking Swimsuit” online: (2022) Illumin Magazine, University of Southern California, https://illumin.usc.edu/how-to-engineer-a-record-breaking-swimsuit/.

[4] Ibid.

[5] Fairhurst, F, Cappaert, J, inventors; Speedo International Ltd. Close fitting article of clothing with highly tensioned fit. EP 1250858A1. Filed December 18, 2000; Fairhurst, F, Cappaert, J, inventors; Speedo International Ltd. Articles of clothing. US patent 6446264. Filed December 18, 2000.

[6] Jenny Johnson, supra note 4.

[7] Fusco, C, Bohm, A, inventors; adidas International B.V. Full body swimsuit. US Patent 6546560. Filed June 20, 2002.

[8] Ibid; The most notable swimmer to race in this suit was Adidas sponsored athlete Ian Thorpe, and it became his signature. Other athletes disliked the tightly fitting arms, and poor compression.

[9] Frank Vizard, “The Olympians New Clothes” online: (2004) Scientific American, https://www.scientificamerican.com/article/the-olympians-new-clothes/; TYR Sport. “TRIPWIRE.” USPTO Serial number 76566188. Filed December 19, 2003.

[11] Jenny Johnson, supra note 4; Rance, J, Simmons, M, and Yeomans, D, inventors; Speedo International Ltd. Swimsuit. EP 1935265B1. Filed August 16, 2007; Speedo International Ltd. “LZR RACER.” USPTO Serial Number 77393468. Filed February 11, 2008.

[12] Jenny Johnson, supra note 4; Meg Maher, “The Impact of Innovation on Sport” online: (2019), Smithsonian Institution. https://invention.si.edu/impact-invention-sport.

[13] Hideki Mochizuki, “Japanese Swimming Federation Considers Speedo LZR Racer for Beijing” online 2008, Swimming World Magazine. https://www.swimmingworldmagazine.com/news/japanese-swimming-federation-considers-speedo-lzr-racer-for-beijing/.

[14] Jenny Johnson, supra note 4.

[15] Karen Crouse, “Competitor Files a Lawsuit Claiming Speedo is Attempting a Monopoly” online: (2008), The New York Times; Davis Wuolle, “Speedo vs. TYR: A legal Analysis of the Tech Suit Debacle,” online: 2013, Swimswam, https://swimswam.com/speedo-vs-tyr-a-legal-analysis-of-the-tech-suit-debacle/.

[16] Fabbrica, F, inventor; Jaked Sri. Racing swimsuit. EP 2204101A1. Filed December 30, 2008; this patent was ultimately withdrawn, likely due to the lack of market relevance following the technology ban by FINA.

[17] It is difficult to find detailed information on non-patented technologies such as the X-Glide, but the Jaked patent indicates a suit made of different materials, with a different structure than the Speedo suit, despite aiming for similar results.

[18] Haley Mick, “I’ll take that $600 swimsuit in size xxs” online: (2009), The Globe and Mail, https://www.theglobeandmail.com/life/ill-take-that-600-swimsuit-in-size-xxs/article4280908/; ironically, prices didn’t really drop as a result of the ban, and companies continue to charge $500 for textile suits.

[19] ABC News, “Full Body Swimsuit Now Banned for Professional Swimmers” online (2009): https://abcnews.go.com/Politics/full-body-swimsuit-now-banned-professional-swimmers/story?id=9437780;

[20] Ibid.

[21] Swimming World Magazine, “Industry News: FINA Approves New Generation of Speedo LZR Racer-Inspired Suits,” online (2009): https://www.swimmingworldmagazine.com/news/industry-news-fina-approves-new-generation-of-speedo-lzr-racer-inspired-suits/; the company used their remaining available technologies, including thermally bonded seams, with more dated technologies.

[22] Musciacchio, G, inventor; Arena Distribution S.A. Swim suit, particularly for competition swimming. US Patent 9854853. Filed July 25, 2012; Flockton, K, et al., inventors; Speedo International Ltd. Swimming garments. US Patent 10548356. Filed August 14. 2015; Berger, J, Dilorenzo, M, Dilorenzo, J, inventors; TYR Sport Inc. Swimsuit with seamless back and tension bands. US Patent 11751610. Filed December 23, 2020; These are just three examples of the many new technologies developed since 2009.

[23] This is somewhat anecdotal, but I was able to use the men’s 100 freestyle final at the men’s NCAA championships, were sponsorship plays a minimal role, as a proxy for market data which was unavailable. At the 2011 meet, 8 of 8 competitors wore Speedo; at the 2015 meet, 4 of 8 wore Arena, and in 2019, a majority 3 of 8 wore Mizuno; these shifts came with the advent of the first Speedo textile suit, Arena’s carbon fiber technology, and the Mizuno GX sonic.