“We want to start a debate”, said Volvo’s CEO recently, as the car manufacturer sets about its stated aim to eliminate fatalities in its vehicles by 2020. Volvo has just announced a raft of new safety features that are on the way into its vehicles, including a Geofencing-based speed limiter, which automatically limits the speed of a car when it gets near to areas where pedestrians are most vulnerable and Project EVA, which aims to reduce gender inequality in crash injuries.

Volvo has long been associated with innovation around car safety. The three-point safety belt, child seat booster cushion and airbag have all been attributed to Volvo over the years. These recent announcements show that the Swedish giant is showing no signs of letting up.

However, the EU’s recent announcement on revised vehicle safety regulation has indicated that development and innovation in this area is going to race up the agenda for many manufacturers. The announcement has set out that a raft of new safety features are set to become mandatory on new vehicles in 2022. These include:

  • advanced emergency braking
  • alcohol interlock installation
  • drowsiness and attention detection systems
  • distraction recognition and prevention
  • event data recorders
  • emergency stop signal
  • full-width frontal occupant protection crash test — improved seatbelts
  • head impact zone enlargement for pedestrians and cyclists, and respective safety glass
  • intelligent speed assistance
  • lane keeping assist
  • pole-side impact occupant protection
  • reversing camera or detection system
  • tyre pressure monitoring system
  • vulnerable road user detection and warning system
  • improved vision of vulnerable road users

These features are a step change from airbags and booster cushions. They’re heavily software-based and will make vehicles technologically more complex from an engineering perspective, placing an increased emphasis on over-the-air updates and cybersecurity. Making such features mandatory makes it likely that a response from all manufacturers will become necessary. Some of them are already commonplace on high-end luxury vehicles but regulation will mean that their filtration into more accessible model lines will need to be accelerated.

The necessity for a response will present a few options for vehicle manufacturers. They can:

  • develop their own technology to ensure their vehicles meet the regulations
  • look to purchase technology from suppliers to fit the technology to their vehicles
  • seek to license technology from other organisations to exploit technology developed by another party
  • copy the technology of another organisation
  • design around the technology of another organisation

Whichever option is adopted brings a wide variety of IP considerations that must be kept in mind in order to mitigate the risk of a lengthy and expensive court battle.

Here’s a guide to some of these and their associated risks.

How can we protect the technology we develop?

Newly-developed technology needs to be the subject of a patent application to protect it from copying by third parties. In order to obtain a patent, however, an invention needs to be novel, inventive and not excluded from patentability.

It’s impossible to fully guarantee that any technology satisfies these requirements. The only way to find out is to file a patent application to protect the underlying technical concept. The respective patent office will examine the application and may grant a patent if it can be satisfied that these requirements have been fulfilled.

Airbags and seatbelts have been protected by patents in the past, but new technologies have a distinct software flavour to them. Software and patents haven’t always been the best of friends but it may be possible to protect such inventions even though computer programs (‘as such’) tend to be excluded from patentability.

How can we protect software-based inventions?

There are no silver bullet solutions when it comes to protecting software-based inventions using a patent. The starting point should be speaking to a specialist patent attorney who can advise you on your chances based on current practice direction at the respective offices.

A general guideline is that if the software is managing a technical process (i.e. determining that a vehicle is present in a blind-spot or managing the speed of a vehicle based on its location), then it’s unlikely to be excluded from patentability. In this instance, it’s probably worth pursuing as a patent application.

If the software is merely presenting information to a passenger in a more aesthetically pleasing way (i.e. to improve the presentation of an obstacle on a reversing camera), then it’s more likely to be excluded from patentability. However, if the improved presentation makes the obstacle easier to see, then it may well not be.

Ultimately, patenting software is complicated — so it’s best to seek specialist advice as early as possible. You should do this as soon as you have a working proof of concept and before you engage any external suppliers on the matter.

What do we need for a patent application?

It’s important to file a full technical disclosure — this discloses something that will enable the invention to be implemented, although it doesn’t need to disclose the best way of implementing the invention. This field is likely to be crowded and any lack of technical detail can be a source of weakness which, should the patent be opposed, will likely be exploited in third-party proceedings.

It’s advisable to treat the filing as an urgent matter because any party who's interested in vehicle safety technology will likely be filing patent applications around the same time — and these will count as prior art against your application in the searching stage. A crowded prior art landscape also means that it’s essential to identify as many advantageous features as you can to increase the likelihood of distinguishing your invention over the prior art in an inventive way.

In short, patent systems across the world generally adopt a ‘first to file’ system, which means that acting quickly to file a patent application provides the best chance of securing broad protection around a concept.

What if we purchase technology from a supplier and fit it onto our vehicles?

This also carries risks. While the supplier may have a patent to cover the technology, you may still be infringing another third-party patent by exploiting it.

Thorough due diligence and Freedom-to-Operate (FTO) searches are advised before committing to any significant purchase of third-party technology.

A thorough FTO search should unearth any problematic rights and you may also wish to ask if the supplier is aware of anything. If it’s impossible to determine the existence of other rights with any degree of certainty, asking for warranties from the supplier to guarantee that it’s unaware of any rights and to warrant that the purchased technology isn't infringing any third-party patents is a is a useful next step.

If the technology’s imported from another territory, this may also present an issue, as the supplier may have only assessed infringement risk in its own territory, not yours. A FTO search is again recommended.

Should we license patented technology from another party?

This is likely to be a commonly-adopted strategy due to the cost of research and development. However, it’s not without risk. Thorough due diligence and FTO searches are advised. As with suppliers, there may well be third-party rights lurking which could prove a problem. Again, appropriate warranties should be inserted into any licence agreements before substantial commitments are made.

Can we use licensed technology as the basis for our own product development?

This depends on the terms of the licence — it may prohibit the use of the technology for developing your own products. Alternatively, the licence may enable you to further develop the technology but assign or license-back the rights to pursue protection for any improvements.

From an IP perspective, there’s nothing wrong with so-called ‘grant back’ clauses, especially if they are ‘non-exclusive’ — but they can attract the attention of competition law authorities. Care should be taken when considering whether to use licensed technology as the basis for further technical development.

Should we copy the technology of another company?

This is very risky. If the technology’s covered by a patent then infringement of that patent by copying the technology could cost you a lot of money. Thorough FTO searches should be carried out before pursuing such a strategy.

How about designing around the technology of another company?

This may appear to be a solution to navigating the risks associated with patent infringement, but it can carry a sting in the tail for the unwary. While a patent may appear to cover a specific combination of features and you feel you’ve designed around one of those features, patent infringement here in the UK (and in multiple other jurisdictions around the globe) covers features equivalent to those that are defined in the claim, and even a design-around may carry a high infringement risk. The advice of a patent attorney should be sought in respect of any design-arounds.

What next?

It’s impossible to predict the future, but as we move through the levels of autonomy towards the elusive Level 5 it would seem that innovation to make vehicles safer is likely to gather at considerable pace, as the responsibility switches from the driver to a network of sensors and control systems.

Full autonomy seems a world away at the moment. However, the question of how much help a driver needs to be safe on the road will still be relevant in the meantime. Volvo seems to want to lead innovation in this area or at least start a debate around the limitations we can place on driver decision-making. We can only guess at what technology our cars will have in a decade’s time.