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There are many obstacles preventing the uptake of autonomous and electric vehicles. A recent white paper from not-for-profit organisation Regen highlighted several policy priorities that need to be addressed by the UK government to build on a strong position in the market for electric vehicles. These include the development of charging infrastructure and the integration of electric vehicles into the current electricity grid. It was also indicated that range anxiety and charger anxiety are two key consumer concerns preventing the purchase of electric vehicles.
Additionally, Baroness Suggs, the Transport Minister in England, recently suggested that the overall majority of software upgrades for autonomous vehicles are likely to be implemented remotely as ‘over-the-air’ upgrades. The Minister highlighted that this is particularly relevant where a safety-critical upgrade is necessary as, under clause four of the proposed Automated and Electric Vehicles Bill, an insurer can recover an amount of money paid out from the owner of a vehicle involved in an accident who has not downloaded a safety-critical vehicle update.
While this all sounds very negative, problems such as dealing with the UK electricity infrastructure to integrate the demand from electric vehicles, or ensuring safety-critical software upgrades are delivered to autonomous vehicles, present opportunities for innovators to provide products to tackle these problems. In doing so, these innovators will generate IP which could add value to the companies involved in the development of these technical solutions.
Here, we highlight the opportunities for protecting IP rights which may arise during the development of autonomous and electric vehicles.
Ensuring that safety-critical upgrades are delivered to autonomous vehicles, and addressing problems associated with the integration of electric vehicles into the national grid, are inherently technical problems, which require technical solutions. The problems of range anxiety and charger anxiety may also be addressed technically by developing batteries with a longer life or charger technology which is easier to install.
The solution to a technical problem is generally indicative of an invention. It is therefore important that when an innovator develops a solution to one of these problems, they consider filing a patent application to protect the concept, before they disclose it to third parties.
Patents add substantial value to companies and the ownership of a patent which covers any of the problems associated with electric or autonomous vehicles will have high commercial value.
Trade marks are generally indicators of origin of a class of goods or services — and can be powerful rights in protecting the value around a brand. It is likely that there will be many new entrants into the automotive sector during the development of electric and autonomous vehicles, given that these vehicles will be more integrated with the world around them.
This means that organisations that weren’t traditionally considered part of the automotive sector will likely start developing automotive products. They may wish to file trade marks which encompass the relevant classes of goods in the sector to make sure they have appropriate protection in place.
A distributor of content, say, might decide to launch a content delivery service for autonomous vehicles. Their trade mark protection around this service (and the related services they provide) will need to take account of this — whereas previously, protection in the automotive sector may not have been of interest.
The uptake of autonomous and electric vehicles has the potential to change the shape of the car like nothing in the last 100 years.
Whilst cars come in many shapes and sizes, they are typically based on a driver-focused footprint, where a driver sits behind a steering wheel with multiple passengers sitting facing forward. Taking the position of the driver away from the design means that this design footprint can be altered radically and multiple different new and interesting shapes can be envisaged for vehicles that do not require a driver (i.e. autonomous vehicles).
It may be possible to protect the shape of a car or any other type of vehicle, provided it is new and has individual character, by registered design.
Both electric vehicles and autonomous vehicles are replete with software managing various aspects of performance. This can range from software to predict the distance that can be travelled on the remaining battery, to that which presents a user interface to enable the adjustment of the internal temperature.
Developers of software may wish to try to seek patent protection. However, it can be hard to obtain a patent for software-based inventions. It may be a better bet to rely on copyright in the underlying code.
Copyright can be monetised in much the same way a patent can — and protection typically lasts longer, running for the life of the author plus 70 years after their death. This timescale is often irrelevant in the software industry as software changes so quickly, but it dwarfs the 20-year protection afforded to patents.
One problem is that copyright only protects against direct copying of the code, so the same output achieved by different underlying code may not be remedied using copyright-based protection.
The reach of the automotive sector into non-traditional fields may open up avenues for licensing IP that did not exist before. The reach of electric and autonomous vehicles into previously unchartered areas of our lives generates opportunities for exploiting existing IP rights for use in the automotive sector.
Owners of existing IP rights who suspect their IP may be of use in the automotive sector may wish to audit their IP to determine the licensing opportunities that may exist. That said, licensing IP into the automotive sector does not come without risk.
Licensing a patent in a competitive field such as this could further increase the chance of a third-party attack on that patent, as licensees may seek to withdraw from the obligations of the license by invalidating the patent.
Also, licensing a trade mark in a developing field like autonomous vehicles may carry an unusually high reputational risk. A relatively immature technology, such as autonomous vehicle technology, is more likely to go wrong and potentially dilute the value of any associated brands.
Whilst licensing should be considered as an option to monetise IP in the automotive sector, these risks should be considered as part of the decision-making process.
As more and more IP rights are registered, there is an increased risk that your activities are infringing the IP rights of a third party. The broadening of the automotive sector into what would be considered non-traditional fields may mean that such a third party IP right may come from somewhere unexpected.
For this reason, it is advisable to regularly review the freedom to operate position around your key products, to ensure your third-party infringement risk is regularly assessed.
If you find yourself with something that you believe may be worth protecting or licensing, or find yourself in trouble with a third-party IP right, please don’t hesitate to contact me.
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