This article has been written by Priyanka Saraswat, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
There was once a time that self-driving cars, vehicles that communicated with and understood the driver, and practically sentient vehicles were considered purely science fiction. Yet, in the past couple of decades, we have come to a lot closer to such imagination becoming reality. Self-driving cars or autonomous vehicles are the next big and ambitious step in the automotive race that is no longer just a contest of the big names but is seeing a lot of new and emerging players. A vehicle is an amalgamation of patented designs and a plethora of other Intellectual Properties propelled by a set of wheels. This article tracks the history and the advent of Intellectual Property (IP) Rights for this technology by the means of existing patents and relevant laws and discusses the roadblocks that have emerged in this race in form of legislation and legalities. For the purpose of brevity, this article will only be focusing on the development of autonomous driving technologies in cars.
What is an autonomous vehicle?
An autonomous vehicle (AV) can simply be defined as a self-driving or driverless vehicle. Therefore, it is a vehicle that can operate itself without any intervention by humans and perform functions by understanding and sensing its surroundings. Autonomous Driving (AD) relies on the Advanced Driver Assist Systems (ADAS) and is classified by the Society of Automotive Engineers (SAE) into six levels from 0 to 5 marking the varying levels of automation where 0 is equivalent to no automation at all and 5 refers to full automation or what we consider a truly autonomous vehicle.
Development of autonomous vehicles for purposes such as cargo, safety, robotics, etc. has been happening since the middle of the last century, however, automation in passenger cars requires a lot more precision and coordination between systems due to the higher levels of human elements involved. At present in the private vehicle segment, Level 2 automation functionality is readily available while Level 3 is being provided by only a handful of companies such as Volvo and Audi. Until a few years ago, the automobile industry had confidently predicted that Level 5 fully autonomous vehicles would arrive by 2021, but the task has proven more complex than previously ascertained, pushing these predictions ahead by a couple of decades at the least.
As per Article 8 of the Vienna Convention on Road Traffic, 1968 that has been adopted by a majority of the countries around the world there is a strict requirement for a human driver to be present in the driving seat at all times, with concessions having been made in 2014 providing for automation only if it can be switched off by a human driver when required. These restrictions automatically delegitimise the prospect of fully driverless automation in cars but a lot of countries are now amending and changing their laws to slowly adapt to having self-driving cars on their roads leading to manned test runs being possible.
The importance of IP rights in autonomous vehicles
Autonomous Driving Technology blends a motor vehicle with the capabilities of a computer powered by artificial intelligence which is why the intellectual properties involved in this technology revolve around computer programs. There are three separate IP protection regimes that computer programs can be protected under copyrights, trade secrets, and patent law. While computer-related inventions are explicitly covered under the copyright law as per Section 13(1) and 2(o) of the Copyright Act, 1957 and trade secret protection is enforced by the court through the Contract Act and common law for breach of confidence. Therefore the focus of this section of the article emphasizes patents.
The changing interpretation of IP laws
The automobile industry’s reliance on IP protection, with the increasing importance and dependence on computer-related inventions, has over time varied the scope of the protection offered by each of them significantly. Originally, patent laws around the world strictly focused on the implementation of innovations in hardware and analog technologies. With the advent of computers and the internet, developments began happening on the software front too which has led to courts beginning to deal with subject matter patentability in relation to software and computer-related inventions. In the U.S. under the patent laws, a patent cannot be granted for abstract ideas as per 35 U.S.C 101, which limits the inventions to those that are on recordable media. In a 2014 judgment, the U.S. Supreme Court held that implementing the abstract idea on a computer (by means of software) does not automatically make it patentable. This, therefore, highly restricts the patentability of software and computer-related innovations, the category under which most autonomous vehicle inventions fall.
India, on the other hand, deals with computer programs under Section 3(k) of the Patents Act, 1970 where the addition of the words “per se” by the 1999 Amendment Act leaves scope for computer programs being examined to ascertain the genuineness of its invention and development. It has led to the Patent Office coming out with three separate Guidelines for Examination of Computer Related Inventions (CRIs) over the years that help properly construe the claims of a computer program and identify their actual contribution. Additionally, Delhi High Court, in the 2019 case of Ferid Allani v. Union of India, reiterated the patentability of CRIs if they demonstrate “technical effect or technical contribution” even though they may be based on a computer program by examining the “per se” in the amended section.
The European Patent Convention (EPC) also has a similar feature under Article 52 that excludes from the purview of patentability any subject matter “as such” which was further elaborated by the Board of Appeals upon an appeal by IBM that “computer programs as such” would only refer to those that were non-technical. Japan is probably the only country that explicitly considers computer programs to be patentable subject matter, along with certain guidelines for examination and determination in place.
However, patent laws do not generally treat software-related inventions the same way as other novel technology advancements. This could be due to a lack of understanding of the nature of software innovation for which courts are now attempting to create inclusive precedential interpretations.
Benefits of patent protection
As a rule of thumb, new inventions in any field of technology shall qualify for patent protection if they are non-obvious, novel, and useful as per Section 2(1)(l) of the Patent Act that defines “new inventions”. Even with the high amount of court discretion required to determine the patentability of a subject, the automotive industry continues to file for patents in as high numbers as ever. Patent protection, if applicable, offers significant benefits to innovators:
- Ensures that the inventors get a reasonable return on their investments in the research and development process;
- Makes it easier for small businesses and innovation-based start-ups to establish business collaborations, attract investment partners and support business expansion;
- Unlike copyright, patents are only protected after receiving explicit registration by the Patent Office.
Is patenting the only option?
A disadvantage of opting for patenting autonomous technologies is the amount of time it takes for a patent to be granted as opposed to the fast pace at which these technological innovations take place. Resultantly, many autonomous vehicle companies choose to keep their software and machine-learning data as trade secrets. Opting for trade secret protection instead can provide significant advantages over a competitor, as it allows the company to continue improving and developing its technology by focusing resources directly towards their research. Moreover, this form of protection is not as expensive or time-consuming as the patent process and its resultant prosecutions. But trade secrets can have their disadvantages since reverse-engineering software algorithms is something companies are wont to do especially in a competition. Additionally, keeping autonomous driving technology data secret could mean that it would be difficult for consumers and authorities to legitimately and completely assess the competency and safety of the systems that guide the vehicles, as they are highly dependent on subjective evidence.
Standard essential patents
Another possible route taken by automobile manufacturers is to opt for Standard Essential Patents (SEPs). Key automotive players push for the creation of standards (i.e. an agreed set of rules and requirements for a certain technology) and SEPs for areas such as mapping, artificial intelligence (AI), and public infrastructure connectivity. SEPs are patents that are necessarily required to be implemented in products for them to be compliant with these standards. These patents are voluntarily declared as essential to standard-setting organizations by the patent holders but their “essentiality” to the standard is not checked upon by any authority. Intellectual Property relevant to standards for autonomous vehicles is likely to be developed by only a dozen or so key players and will create a cross-licensing regime while smaller players suffer setbacks with high licensing costs. This could also lead to patent wars breaking out over autonomous standards, as it has already been happening in the case of other standardized technologies.
Status of autonomous vehicle technologies, globally
Around the world
Intellectual Property tends to play an essential role in the development of autonomous vehicle technologies. A large number of companies around the world continue to steadily file for patents on automotive control systems, copyrights for more connected operating software, and trademarks for newly created brands related to self-driving cars. In fact, between 2010 and 2015, there were more than 22,000 new inventions related to autonomous automobiles patented around the world with automakers leading the charge instead of tech firms.
By 2019, the highest number of patents, 626, for autonomous vehicle technologies were owned by Toyota, followed by 518 owned by Ford. Apple Inc. has progressively been obtaining patents for its electric car project named Project Titan, such as the recently issued patent related to a system that can guide a driver on how and when to change lanes safely along with determining overtaking maneuvers.
Despite the extensive patent filings related to autonomous vehicles, companies are now beginning to recognise the necessity for collaboration. And a newer trend is the collaboration of automotive companies with tech companies. Although it’s early to tell, it will be exciting to see what effects this collaboration has on IP prosecution and future IP-related collaboration. The open sharing of codes, ideas, and research between automotive and technology companies, could lead to an increased likelihood of possible misappropriation or mishandling of proprietary trade secrets.
While there are both automobile and tech companies such as Fisheyebox, Playment, Fluxe Auto, Tata, and Mahindra that are working towards developing autonomous vehicle technologies, the majority of cars in India are still with only Level 1 automation. This however does not mean that India is not making efforts in the advancement of automation technology. In 2016, TCS, a subsidiary of Tata Group, achieved driverless capabilities on a Tata Nano converted into a suitable prototype at very low costs.
In recent years, automotive patent filings in India have seen a steep rise, a significant part of which is for autonomous driving technologies, not just by Indian companies but also by global leaders such as Daimler, Toyota, Nissan, and Bosch. In 2017, Nissan filed a series of patent applications in India related to autonomous driving technology. One of the reasons attributed for the increase in filing for patents in India is the 2013 amendment to the Patent Act that has reduced the costs of patent filing especially for MSMEs and start-ups along with an emphasis on e-filing and a faster examination process. Many global players in the race are also looking at India as one of the toughest proving grounds for their autonomous technologies for which registering and testing their technology on the ground makes more sense.
The Intellectual Property Laws that govern innovations such as autonomous driving technologies especially Patent Laws have been going through examination and interpretations over the past years to attempt to bring to the fold of the protection computer-related inventions. As the Delhi High Court in the Ferid Allani case observed, “In today’s digital world when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable.” However, while the innovation in the autonomous vehicles industry is happening at a breakneck speed and the Intellectual Property Laws that are meant to support these innovations are lagging while attempting to catch up.
We cannot afford to limit patent protection available for software or computer-related inventions and the time is ripe for the community to re-examine the current state of the laws and to include them in the legal framework itself instead of having to define them on case to case basis by taking them to court which tends to add a burden of time and finances for the companies. Although different countries have been taking different approaches towards the restructuring and interpretations of their respective patent laws, maybe inspiration can be taken from the automobile industry that has started to work collaboratively, and a global effort can be made for reforming the segments we are so evidently lagging in.
- WIPO Economic Research Working Paper No. 60: Measuring Innovation in the Autonomous Vehicle Technology by Maryam Zehtabchi
- Case Analysis: Alice Corp. v. Cls Bank by Stuti Singh, Mondaq
- WIPO Magazine February 2017 issue: Patent protection for software-implemented inventions By Ania Jedrusik and Phil Wadsworth
- Autonomous vehicle standards won’t drive patent wars by Patrick Wingrove, Managing IP
- Recent Patent Developments in the Autonomous Vehicle Market, Lexology
- Vishwaroop Sharma, Senior Design Engineer – Automotive
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