Gebruikmaken van E/AV-octrooiportfolio's tijdens een pandemie

Like many industries, the pandemic has impacted the automotive industry, including electric and autonomous vehicle (E/AV) research and development.  E/AV companies have laid off workers, delayed testing, and postponed the launch of some vehicles.  Also during this time, there continued to be uncertainty around patenting AI technology, and the U.S. Patent and Trademark Office sought public feedback on the impact of new AI technologies on current intellectual property laws, and whether current patent laws should be amended to address same.  In spite of the negative impacts of the pandemic, and the uncertainty around AI-related patents, E/AV companies continued to innovate at a breakneck pace, and leverage their patent portfolios to secure significant funding amidst the pandemic.

Some initial negative consequences of the pandemic included:

• Two ridesharing companies each laid off about 20% of their workforce, and an autonomous vehicle joint venture laid off about 10% of its workforce.
  
  
• Due to declines in vehicle purchases, original equipment manufacturers (OEMs) and investors reduced funding and production, and shifted their focus to financial issues.
  
  
• Multiple automotive companies postponed or suspended their self-driving vehicle testing and deployment, and shut down ridesharing services, setting back progress in AV technology development.

As the very premise of AV technology is to improve public safety and provide societal benefits, AV companies stepped up to the plate by applying their technology to solve unique problems posed by the pandemic. The following are some illustrative examples of the top applications of AV technology to the pandemic:

• Companies deployed AVs to deliver medical supplies, food, and packages. Companies also deployed AVs to disinfect areas, and formed partnerships to accelerate the development of AV technology to mitigate the spread of the virus. Some companies repurposed their technology to assist with various efforts, including charitable deliveries.
  
  
• Robotaxi services were deployed to provide an alternative transportation system for people, and were modified to provide a temperature measurement and take disinfection measures. In another example, using a software patch configured for vehicle self-sterilization, a company was able to disinfect its fleet of vehicles.
  
  
• Aangezien de toepasbaarheid van AV-, 5G- en AI-technologie voor het beperken van de verspreiding van het virus tijdens de pandemie steeds duidelijker is geworden, hebben landen nieuwe prikkels gevonden om wetgeving te bevorderen die onderzoek en ontwikkeling op het gebied van AV vergemakkelijkt.

As illustrated above, E/AV companies continued to innovate and gain traction for their technology throughout the pandemic, and continued to seek funding in order to accelerate the rate of innovation.  To stand out amongst their peers and attract investors during the pandemic, E/AV companies can leverage their deliberate, strategic patent portfolios development strategy.  A patent portfolio is a key asset owned by the company and is often highlighted to investors as an indication of a company’s innovativeness and robust research and development pipeline.

The following charts overlay the number of patent filings/month with funding events for 2 well-funded E/AV companies that raised funds during the pandemic. Funding events are according to CrunchBase, and patent filings are determined from the USPTO’s public patent database, both as of September 2020. It should be noted that patent applications typically do not become public until 18 months after filing, so the following charts represent patent filings as of February 2019.

Figure 1:  Ouster patent application filings/month and funding events

Ouster, from the start, ramped up its patent filings to 10 applications filed in January 2017 contemporaneously with its first funding event for $3 million. Ouster continued with two more months of filing eight patent applications per month until its next funding event of $27 million in December 2017. Again, Ouster continued its patent program by filing 17, 14, and 11 patent applications in May 2018, July 2018, and December 2018, respectively, which was followed by its biggest funding event of $60 million in March 2019, and the latest funding round of $45 million during the pandemic in September 2020.

Figure 2:  Xpeng patent application filings/month and funding events

Xpeng had an initial funding event of about $20 million in March 2016. Thereafter, Xpeng consistently filed patent applications almost every month until August 2018. After August 2018, Xpeng increased its patent filings to upwards of 80 patent applications in a single month until a large funding event in November 2019 for $400 million, which was subsequently followed by two more funding events for $500 million and $400 million during the pandemic in 2020.

Each of these well-funded E/AV companies had a spike in patent filings either right before or after a significant funding event, and the optics of a consistent, deliberate patent program can help attract investors or result in a more significant raise.  However, since E/AV companies increasingly leverage artificial intelligence-related inventions to perform a wide range of tasks, such as image recognition, autonomous navigation, obstacle avoidance, battery management, etc., the uncertainty around patenting AI-related inventions may pose challenges to consistently building out a patent portfolio.

It can be challenging to obtain patent protection for certain AI technologies due to U.S. patent law deeming them to be abstract ideas that may be ineligible for patent protection under certain circumstances.  This area of patent law has been in flux for several years, and there have been mixed results from courts attempting to provide clarity on the issue.  With the goal of maintaining U.S. leadership in innovation in emerging technologies by promoting the understanding and reliability of IP rights in relation to AI technology, the U.S. Patent and Trademark Office published a report titled “Public Views on Artificial Intelligence and Intellectual Property Policy” in October 2020, summarizing the feedback it received concerning issues of patent policy for AI technologies.  Among other topics, the report sought feedback on the ability of current U.S. patent laws to address: 1) whether inventions including an application of AI are eligible for patent protection, and 2) whether inventions “made” by AI are eligible for patent protection.

Generally speaking, the commenters agreed that AI does not have a universally recognized definition, and that the current state of the art is limited to “narrow” AI systems that perform individual tasks in well-defined domains (e.g., image recognition), as opposed to artificial general intelligence (“AGI”) akin to that possessed by humankind.  Since AGI has not yet arrived and humans remain integral to the operation of AI, the commenters suggested that AI was just a tool used by humans to make an invention and AI cannot yet invent without human intervention, making humans integral to the operation of AI.  According to the report, the consensus for now appears to be to punt on whether an invention conceived of by AI is eligible for patent protection because AGI does not appear to be on the near-term horizon.

On the more pressing issue of whether U.S. patent law is well-equipped to analyze whether inventions that include an application of narrow AI are eligible for patent protection, the majority of commenters agreed that since AI can be viewed as a subset of computer-implemented inventions, the current USPTO guidance on patent subject matter eligibility is applicable.  Commenters suggested that AI inventions should not be treated any differently than other computer-implemented inventions.  Further, it was noted by a commenter that the complex algorithms that underpin AI inventions have the ability to yield technological improvements.  And, even if a claim in a patent application is directed to an abstract idea, the claim is still patent eligible if the additional claim elements, considered individually or as an ordered combination, amount to significantly more than the abstract idea so as to transform it into patent-eligible subject matter.

Another potential hurdle to patenting AI-related inventions is the requirement to adequately describe the invention in the patent application.  However, the majority of commenters shared the sentiment that there are no unique disclosure considerations for AI inventions.  Indeed, one commenter noted that the principles regarding computer-implemented inventions are similarly applicable to AI-related inventions as to conventional algorithm solutions.  That is, AI inventions that include claims to computer-implemented inventions should provide sufficient detail in the specification regarding the hardware, as well as software, to show that the inventor had possession of the full scope of the claimed invention (e.g., disclose one or more of the detailed steps, detailed procedures, formulas, diagrams, or flowcharts).

In conclusion, while the pandemic had negative impacts across numerous industries, E/AV companies continued to innovate and were still able to achieve their business objectives with the help of their patent portfolios.  And, as E/AV technology increasingly leverages AI-related innovations, it appears that the consensus from the USPTO’s report is that aspects of these technologies will continue to be eligible for patent protection when claimed and sufficiently described in a patent application pursuant to the requirements set forth by the U.S. patent laws and USPTO requirements.  Having a consistent and strategic approach to developing a patent portfolio through uncertain times can facilitate an E/AV company to achieve its business objectives.