Autonomous vehicle technology has progressed significantly in the past decade, and a growing number of automotive and electronics organizations are working to create these self-driving vehicles. While the race to autonomy is heating up, so is the race to own IP rights and protect technological advancements in this domain. This blog will discuss the different types of intellectual property that automotive and technology companies are utilizing to protect their technological advancements in the field of autonomous vehicles.
First, it is important to understand what exactly autonomous vehicles are. Autonomous vehicles are cars capable of sensing their environment and operating without human involvement. There are currently six levels of driving automation ranging from level zero, fully manual, to level five, fully autonomous. Level five has not been achieved yet, but many automotive and technology companies are racing to be the first with a fully autonomous car. To do this, “autonomous vehicles rely on sensors, actuators, complex algorithms, machine-learning systems and powerful processors to execute software.” Considering all of the technology and development that goes into producing an autonomous vehicle, it is not surprising that companies would want to protect their intellectual property. In fact, in the last several years automakers and their suppliers have significantly increased the number of patent applications filed in the United States and abroad. However, since autonomous vehicles will require automakers and suppliers to develop technology outside of the scope of their traditional product development, patents may not provide substantial protection for these inventions. Instead trade secret protection may provide more appropriate intellectual property protection for autonomous vehicle technology. Companies must therefore decide which type of intellectual property protection to pursue.
Patents and trade secrets are two types of intellectual property protection that may be used to protect autonomous vehicle technology. Patent and trade secret protection are mutually exclusive intellectual property strategies as patent protection requires that the applicant publicly disclose the information related to the invention, while trade secret protection requires that the information related to the invention remain confidential. Therefore, companies must choose which type will better protect their inventions.
A patent for an invention as described by the United States Patent and Trademark Office (USPTO) is the grant of a property right to the inventor which gives the inventor “‘the right to exclude others from making, using, offering for sale, or selling’ the invention in the United States or ‘importing’ the invention into the United States.” Patent rights can be extremely important in the success of a company so it is not surprising that as autonomous vehicle technology advances, companies are trying to patent everything from sensors to controls and monitoring systems.” Specifically, the world’s largest supplier of automotive components, Bosch, “holds numerous patents in areas such as LiDAR, satellite-based navigation, and Infrared (IR) imaging systems—precisely the sorts of technology that autonomous car will depend upon to navigate safely without a driver behind the wheel.” Despite the many benefits of patent protection, it may not be the most ideal intellectual property protection for all autonomous vehicle technology. First, the autonomous vehicle field is developing at such speed that a patent may be futile or out of date by the time it is issued as it can take years to fully prosecute a patent from application to issuance. Also, it can be difficult to portray the strategies or elements of an autonomous vehicle framework, including the artificial intelligence process and iterative advancement of hidden calculations, which is required for a patent grant. Additionally, in 2014 the United States Supreme Court decided Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014). Alice addressed subject matter patentability and held that the claims in the patent at issue were not patent eligible because they described an abstract idea, specifically that the claims described a fundamental economic practice. 134 S. Ct. at 2350. This decision has made obtaining patents based on algorithms and software more complicated. Because much autonomous vehicle technology relies on algorithms and software, many companies keep their technologies and machine-learning data as trade secrets.
Trade Secrets are defined by The Uniform Trade Secrets Act (UTSA) as “information, including a formula, pattern, compilation, program device, method, technique, or process, that: 1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and 2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Trade secrets possess some characteristics that are desirable to those looking to protect autonomous vehicle technology. As stated above, trade secrets can protect abstract ideas, including algorithms and software, which cannot be protected by patents. Another advantage of utilizing trade secrets is that it is much less expensive and less time consuming to obtain trade secret protection than patent protection. Trade secrets can be immediately available and there is no filing or dealing with a government agent of any kind. This can help companies gain competitive advantage because it allows the entity to continue improving its products by channeling resources directly into development rather than paying fees to try and obtain a patent. One downside to trade secret protection is that because the trade secret needs to be kept confidential, this can “translate into cumbersome security measures and ‘need to know’ protocols and limitations.” Also, trade secrets are vulnerable to reverse-engineering “as competitors can sometimes reverse-engineer software algorithms.” Overall, both patents and trade secrets will likely play a vital role in the development of autonomous vehicle technology, and companies should take into consideration the pros and cons of each type of protection to decide the best method of protecting their intellectual property.
* Allison Zweng is an Associate Editor on the Michigan Technology Law Review.