29/11/2018
With developments in self-driving cars making the mainstream news on a seemingly weekly basis, it’s perhaps not surprising that trends in patent filings relating to this potentially world-changing technology are under the microscope. We recently wrote about a Japanese report ranking the patent portfolios of the big players in the self-driving car arena, and Managing Intellectual Property magazine published an interesting report in July that explores how self-driving cars and the associated intellectual property could impact the automotive industry.
The European Patent Office (EPO) has now weighed in with its own study, prepared in association with EUCAR (the European Council for Automotive R&D). The study follows what feels like a significant amount of recent outreach and discussion from the EPO about the patentability of technologies key to making self-driving cars a reality, most notably AI and machine learning. This includes a recent EPO conference (see our report here) and some significant additions to the EPO’s own guidelines for the examination of patent applications relating to AI and machine learning. Clearly the EPO appreciates that these technologies are not just a flash in the pan and feels the need to be prepared and perhaps, if necessary, to adapt.
While the EPO’s study is less commercially-focussed than some others, the statistics it produces are still of interest. This is not least because the EPO has access to as-of-yet unpublished patent applications, which is significant when it comes to relatively new and rapidly evolving technologies such as this.
What do the Statistics Show?
The EPO’s statistics show that between 2013 and 2017 there was three-fold increase in the filing of new patent applications relating to self-driving cars. To put this increase in context, it is roughly twenty times higher than the average increase across all areas of technology.
Perhaps more interesting than the raw increase is the driving force behind it. Self-driving car technology is at the crossroads between the automotive industry and the IT and telecommunications industry. While the former is certainly innovative, the latter is a prolific filer of patent applications, and it is the latter which appears to be the driving force. In fact, amongst the top ten filers of European patent applications for inventions relating to self-driving cars, the statistics show that there are just three companies – Bosch, Toyota and Continental – which you might describe as traditional automotive companies. The top three filers – Samsung, Intel and Qualcomm – are not names you would normally associate with cars.
The statistics also show that companies are filing their patent applications for self-driving car inventions more widely than their applications for traditional automotive inventions. According to the study, the average number of applications per patent family (per invention, that is) is 4.8 for self-driving car technology. The equivalent number for traditional automotive inventions is just 3.2. On a similar note, the EPO estimates that applicants file 76.7% of self-driving car inventions at a regional level (via the Patent Cooperation Treaty or the EPO), which can result in geographically widespread patent protection. The equivalent percentage for traditional automotive inventions is just 51.3%.
These differences may simply reflect that the new entrants – the IT giants – are used to filing their patent applications more widely. Alternatively, it may be that applicants appreciate that the technologies that will be core to self-driving cars are not going to be tied to a few key manufacturing bases. Communication standards and infrastructure, for example, may well be implemented far more widely.
Looking to the Future
The EPO’s statistics suggest that the traditional automotive manufacturers will own a relatively small fraction of the intellectual property that they will need (or at least want) to use as they expand into the market for self-driving cars. This may well mean that patent licensing, and business models based on patent licensing, will play a much bigger role in the future of the automotive industry.
As awareness of these trends increases, traditional manufacturers may well view innovation and the filing of patent applications as increasingly important way of establishing their position in the market. They may also see it as a way of grabbing a slice of the patent-licensing pie for themselves. It would therefore not be surprising to see the rise in the number of new patent applications in this area to continue.
The presence of the big IT companies, who are used to flexing their muscles in the courts, may lead to more litigation in the automotive industry. There are already suggestions that the self-driving car industry will become a new forum for the ‘patent wars’ that have engulfed the smartphone industry for much of the last decade.
We can also expect to see technical standardisation in the industry, for example in the way that self-driving cars communicate with each other to safely navigate the roads. This could lead to the existence of ‘essential’ patents and consequently licensing on fair, reasonable and non-discriminatory (FRAND) terms. Following the UK Court of Appeal’s recent approval of the High Court’s 2017 Unwired Planet v Huawei judgement, paving the way for injunctions and court-imposed worldwide FRAND licenses, the UK could prove to be a significant forum for licensing disputes in the self-driving car industry.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
