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Legal Innovation 2019

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L E G A L I N N O V A T I O N 14 A 'cross-pollination' of ideas and technologies within the autonomous vehicles market is complicating the process of patenting creations to develop their technologies and compete with patented inventions owned by established stakeholders. However, she adds: "In the longer term, larger fi rms that decide to sit on a patent may unwittingly be a catalyst for innovation, as in doing so they may motivate smaller rivals to develop alternative technologies." In the near future, with some liti- gation inevitable, many believe that the companies most likely to avoid it will be those taking a more inclu- sive and innovative approach to IP ownership. "In addition to cross-licensing, in some instances we'll also see more companies creating open source platforms for their inventions," says Dr Gurgula. "This is already hap- pening in other sectors, such as the pharmaceutical industry, where companies have gradually started to employ more open innovation busi- ness models." Mr Kazi adds: "Making some IP open source is an interesting idea and I have advised several clients to consider carefully what bits of their IP to keep proprietary and how to make other innovations available to others, in a controlled manner, which helps grow the overall market and benefi ts them in that way." But for open source licensing plat- forms to really take off in autono- mous vehicle research and devel- opment, he notes that larger participants need to be convinced that widely licensing some patents very cheaply, or even for free, will spur innovation in the fi eld and ulti- mately benefi t them. "Litigation will, of course, still hap- pen," Mr Kazi concludes. "But most agree that wherever possible com- mercial co-operation is better than an expensive round of litigation." Dr Gurgula, who lectures at Brunel Law School, says many of the main players "are already aggressively pursuing patent strategies". She thinks the sector could be in for a bumpy ride and sees parallels with the mobile telecoms industry, where patent wars are common. "While nobody knows quite what will happen, the 'cross-pollination' of sectors could mean more mul- ti-billion-dollar law suits," she says. "It is possible too that where it's claimed an automaker has infringed a patent, they may have to stop sell- ing their vehicles until the dispute has been resolved." However, Dr Gurgula is keen to stress that a temporary suspension of sales would be the worst-case sce- nario and most infringements would probably be settled out of court. Ilya Kazi, patent attorney, shares the view that "patent overlap" could lead to more litigation. However, Mr Kazi, who is a senior partner at Mathys & Squire, doesn't think it so likely that a ruling in a patent court could prevent autonomous vehicles being sold. "That would be an extreme and counter-productive step for every- one," he says. "While it's true a pat- ent is a monopoly, which has the potential to stop rivals from trading, it's in the patent holder's commer- cial interest to make money from it and, of course, that doesn't happen if nobody is selling anything." ross-fertilisation of tech- nologies in the devel- opment of autonomous vehicles and the convergence of dif- ferent sectors is as astonishing as it is profound. But an intellectual property (IP) dispute involving Volkswagen and Broadcom, a California-based semi-conductor supplier, tells a dif- ferent story. Broadcom fi led a $1-billion pat- ent infringement claim against the German automaker. It also called on the courts to impose a ban on VW models containing the semi-conductors. In the end, a deal was struck. But as expert in patent law Dr Olga Gurgula says: "A myriad of compa- nies from a range of diff erent sectors make patent disputes much more likely in the short term at least." This is because more companies now specialise in particular systems embedded in self-driving vehicles. C James Gordon P A T E N T S Mr Kazi thinks there's likely to be much more collaboration in this fi eld over the next decade. Some of it, he says "may be friendly and some grudging", but the net result is likely to be that the key technology is made available at a realistic com- mercial price. If this is to be achieved, Dr Gurgula expects companies to broker cross-licensing patent deals with each other whenever possible. Indeed, several key strategic alli- ances between automakers and technology companies have already been struck. Toyota and Intel, Denso, Ericsson and NTT Docomo recently came together to form the Automotive Edge Computing Consortium, for example. Dr Gurgula says: "In an indus- try where multiple patents belong to numerous companies, it's dif- fi cult to produce a single product without infringing on others pat- ents. Therefore, for large compa- nies to succeed, the best way for- ward is to create partnerships and joint-ventures." So could this stymie innovation? Mr Kazi does not think so. He says that while there will be challenges ahead, fundamentally the patent system is intended to encourage and reward invention, not to stifl e it. But Dr Gurgula believes that a pat- ent may make it much more diffi cult for small companies, which are not part of a collaborative consortium, and patents overlap A myriad of companies from a range of diff erent sectors make patent disputes much more likely in the short term at least Volkswagen's 'Cedric' self- driving automobile at the Geneva International Motor Show Harold Cunningham/Getty Images COMPANIES WITH THE MOST AUTONOMOUS DRIVING PATENTS By number of active patent families, as of June 6, 2019 1,765 1,285 1,241 1,104 948 Toyota Bosch* Ford Volkswagen General Motors *Without BSH LexisNexis/PatentSight 2019 When tech converges

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