Self-driving cars: Putting IP in the driving seat
In March, a self-driving vehicle killed a pedestrian in Arizona during one of Uber’s tests. During the same month, the person behind the wheel of a Tesla electric car died when the vehicle crashed while travelling in autopilot mode.
The potential health and safety concerns take centre stage in the day-to-day public discussions around the future of driving, and they certainly shouldn’t be overlooked, but for those developing the technologies to make autonomous driving possible, the ability to protect the high-tech innovations is also of great importance.
Driving a revolution
“The automotive industry is undergoing a complete change, a revolution,” says Anna Maria Lagerqvist Gahm, senior IP counsel at Volvo Cars in Gothenburg, Sweden. “We’re not only selling products; we’re selling mobility and related services. It’s a change for the entire industry.”
While the automotive industry has historically centred on the creation and sale of hardware products, ie, cars and car parts, it is now moving towards also being a provider of software and mobility services.
"The basic trend in terms of patents is that filing has rocketed since 2011." Andrew Flaxman, Haseltine Lake
Andrew Flaxman, senior associate at Haseltine Lake’s Bristol office in the UK, explains that this evolution has led to the autonomous vehicles industry being a “hugely developing” area—and one that has experienced an increased level of patent filings over the past few years.
One study (“Patents and self-driving vehicles”), released on November 6 by the European Patent Office (EPO) and the European Council for Automotive R&D, suggested that the number of European patent applications related to autonomous driving has grown 20 times faster than other technologies in recent years.
The EPO’s study said that over the past decade, the EPO has received roughly 18,000 patent applications relating to self-driving vehicles, with nearly 4,000 filed in 2017 alone.
Between 2011 and 2017, autonomous vehicle patent filings at the EPO increased by 330%, compared to 16% across all technologies in the same period, according to the statistics.
Other research conducted by Haseltine Lake’s patent analytics team, HL Analytics, and released in a newsletter in August, similarly demonstrates that there has been strong year-on-year growth in the number of patent applications filed globally in the autonomous vehicle field.
“The basic trend in terms of patents is that filing has rocketed since 2011,” Flaxman commentates. “With the number of people and companies getting involved, this figure is likely to increase year on year for the foreseeable future.”
The research, which analysed globally-published applications related to autonomous vehicles (according to HL Analytics’ interpretation) since 2011, showed that most filings occur in the US (8,733), with more than double the number of filings occurring there than in the next most popular jurisdiction, Germany (3,352).
Based on HL Analytics’ research, the most active applicants in this field are Ford, Bosch, Toyota, GM Global Tech, and Google/Waymo (Waymo, Google’s former self-driving car arm, separated from its parent company in 2016).
The companies that have obtained the most patents are, in order, Google/Waymo, Toyota, Honda, GM Global Tech, and Nissan.
Patent topics
The research showed that the patent filings encompass a number of technologies. For example, anti-collision and radar/lido (object detection) technologies are favourites for most companies, while scene/sign recognition inventions get the least amount of attention in filings.
Google/Waymo has filed the most scene/sign recognition patents, possibly due to their ability to transfer image and feature recognition techniques from internet platforms to vehicles, HL Analytics suggested.
"Everybody has to come to the table on this, from government members to industry players." Frederick Mau, Toyota
GPS/route guidance, artificial intelligence, and the internet of things are other focus areas of patent filings in the realm of self-driving cars.
However, although the concept of the autonomous vehicle might be fairly new, the technology areas that combine to create the end-product are not necessarily novel themselves, thereby creating a challenge for patentees.
IP roadblock
According to Johnathan Markham, partner at Beck Greener in London, many of the various technologies that feed into autonomous vehicles are built on inventions that already exist.
John McNelis, partner at Fenwick & West’s Mountain View office in California, says there are already many thousands of patents covering the technologies included in autonomous vehicles, such as identification and control technology and control and navigation systems.
For example, hardware control elements relating to braking, steering, and acceleration already exist through elements such as cruise control. Underpinning the hardware is software, which has similarly been used in other industries and products and, additionally, can be particularly hard to patent.
As software is at the “heart of the system” that operates autonomous vehicles, this can be particularly problematic for developers, says Lagerqvist Gahm.
“There needs to be a standardised system to allow vehicles to communicate in the same way that we have with mobile phone networks.” Johnathan Markham, Beck Greener
“The software is what analyses the data from all the sensors and cameras, and then makes sense of it,” she explains.
Frederick Mau, IP managing counsel at Toyota, Texas, agrees that one of the biggest challenges facing car manufacturers is how best to protect software inventions.
The availability of patent protection for software technologies based on computer programs or computer-generated data is still somewhat unclear, Lagerqvist Gahm explains.
Flaxman says that software inventions in the area of autonomous vehicles tend to have some kind of technical or practical effect (such as using a sensor to detect something and causing the brakes to be activated), enabling the software invention to be patented.
Mau has found this to be the case in practice. Toyota has been very successful in patenting software, because the company ensures that the invention is tied to something tangible in the real world, he says.
Accelerating collaboration
A major change which stems from technological development of the automotive industry—and its move from hardware to software development—is the volume and type of entities operating within the field.
The industry used to be made up of original equipment manufacturers (OEMs), but now, new entrants from technology fields are entering the space, Lagerqvist Gahm says.
This is evident from HL Analytics’ research, which identified non-traditional automotive companies such as Google/Waymo and Bosch as being among the entities responsible for filing the most patents in autonomous vehicle technologies.
In August, technology brand Apple was granted a US patent (10,053,001) which covers how a driver can set a vehicle to ‘autonomous mode’ and receive communications from it about ‘near future’ manoeuvres, such as a turn.
Meanwhile, one of Uber’s US patent applications (15/803,184), published in March, describes how flashing lights and audible signals will be used to communicate the vehicle’s intentions to pedestrians.
Google was granted a US patent (9,196,164 B1) in 2015 for similar ideas, such as the use of lights, image displays, and audible signals to aid the vehicle’s communication with other vehicles and pedestrians.
Flaxman predicts that other technology leaders, such as Samsung and Amazon, will also move into the field. He adds that the volume of collaborations in the industry “makes sense”—companies may be good at making cars, but that doesn’t mean they are as good at developing anti-collision technology.
Mau suggests that companies should continue to develop technology and patent their inventions, but they also need to continue communicating and working together to bring new technology to the forefront of the market.
Lagerqvist Gahm agrees: “My personal view is that, to be successful and achieve goals, collaboration and interoperability are key.”
In Markham’s opinion, the success of developing self-driving cars is inseparable from the companies’ ability to work together.
“I can’t see how these vehicles can work without standardisation, particularly with regard to communication,” he says. “There needs to be a standardised system to allow vehicles to communicate in the same way that we have with mobile phone networks.”
Markham predicts that this will lead to further collaboration in the form of patent pools, as well as the agreement on standards protected by standard-essential patents (SEPs).
Bijal Vakil, partner at White & Case’s Silicon Valley office in California, speculates: “In a perfect world, all the world’s car companies would come together to establish standards for detection, collision avoidance and for signals/stop signs.
“That would result in a sea-change that would pave the road for the future innovation.”
Driving disputes
Various vehicle companies have developed and patented technology but they have rarely sued each other over these inventions.
“A major reason that litigation between major autonomous vehicle companies will not explode is because much of the technology relates to safety issues, and companies are reluctant to sue over a safety improvement, because of a possible public relations hit and because there are some existing agreements to share information to improve safety and reduce recalls,” McNelis explains.
Lagerqvist Gahm agrees. She notes that IP disputes in the automotive industry traditionally have been relatively rare for a number of reasons: companies have tended to invent around others’ IP, disputes have often been resolved amicably, and safety-critical technology has been licensed.
For example, Volvo invented the three-point seatbelt in 1959 and went on to license it widely, she explains.
“It was a critical new technology that we wanted everybody to be able to use for the safety of consumers,” Lagerqvist Gahm says.
However, new entrants in the industry may not be interested in the automotive sector’s tradition of informal agreements and cross-licensing between equals which has avoided much litigation in the past, she adds.
Mau similarly says the intention is always to develop good relationships with new players in the field but, whenever companies are developing new technologies, there is a risk that disputes will occur.
Markham warns that the entry of new players in the automotive industry may cause a power imbalance, as tech companies already own patents in areas that OEMs do not.
“Companies are jostling for superiority at the moment, and there’s some uncertainty: who’s going to come out as the really big player?” Markham questions.
Flaxman notes that there are now many large players in the self-driving vehicle field and a wide range of technologies are involved in the development of autonomous cars.
For example, the smartphone industry and those within it, such as Apple and Samsung, have been very litigious over the past years, and the entrance of such players is potentially an indication that there will be many more IP disputes in the automotive industry.
“Companies are using technologies from other industries that they weren’t typically using,” Flaxman says. “There are signs of lots of potential conflicts arising.”
Vakil predicts that cross-licensing and litigation in the industry will both rise as the self-driving sector develops.
Safe and sound
In Flaxman’s opinion, IP law is doing a good job of keeping up with and regulating the technologies incorporated within self-driving vehicles, but other aspects of the law do not yet address other challenges posed by autonomous cars.
“If a driverless vehicle is involved in an accident, who is responsible?” he asks.
Flaxman points out that different countries have different rules of the road, and it will be difficult to align these laws and ensure that vehicles behave appropriately depending on locality. He gives the example of ‘jaywalking’: a simple act which is an issue in some places but not others.
In addition to the physical safety aspects, Flaxman says that the threat of hacking is a concern which needs to be addressed before autonomous vehicles become mainstream.
Lagerqvist Gahm notes that issues of cybersecurity, privacy, and data protection will also need consideration.
Addressing these challenges, and any others that appear, will have to be a joint effort, as Mau says: “Everybody has to come to the table on this, from government members to industry players, to find something that works.”
The road ahead
Waymo currently has the world’s largest fleet of autonomous vehicles (600), as well as the record for the most miles driven in one of the cars (10 million).
With plans to launch the world’s first self-driving, ride-hailing service in Phoenix, Arizona, by the end of 2018, Google’s spin-off is also expected to be the first company to deploy autonomous vehicles for use by the general public.
Whether or not Waymo is able to meet its ambitious launch target, it’s clear that self-driving cars are the future—and the future is fast approaching.
Self-driving technologies
