Typically, the automotive industry has seen fairly little patent litigation, in stark contrast to other areas, such as the pharma and consumer electronics fields. See Michael Summersgill & Arthur Coviello, “3 Trends That Could Lead To More Patent Auto Litigation,” JDSupra, Dec. 26, 2018, at https://www.jdsupra.com/legalnews/3-trends-that-could-lead-to-more-auto-48832/ (last visited Feb. 12, 2019). Some attorneys have speculated that the relatively low numbers of patent lawsuits pertaining to auto claims may have been attributable to “an industry dynamic in which established automotive manufacturers competed through incremental improvements and product differentiation, and generally avoided patent battles with each other.” Id. However, analysts have predicted an increase in patent cases pertaining to the automotive field for a number of reasons. See, e.g., id.This article assesses the possibility of increased patent litigation in the auto industry and examines some legal angles contributing to the potential surge in claims of this nature.
There are several reasons practitioners have foreseen an uptick in automotive patent cases.
(1). Technology Convergence: Commentators have noted that “[o]ne of the key drivers for increased patent litigation in any industry is the convergence of many technologies onto a single platform. The more technologies are included in a given product, the more patents might potentially read on that product, and the more different companies might hold such patents and seek to assert them.” Id.Technology convergence has occurred in other fields, such as with smartphones. See id. When smartphones developed and utilized technologies that previously did not exist, patent litigation ensued regarding the various advancements. See id.
The convergence of technology can currently be observed in the automotive industry. See id.For example, “[c]ars now include an ever-increasing diversity of new and complex technology,” such as self-driving (or autonomous) features, voice recognition, wireless capability, and more. Id.When these myriad technologies converge onto one automotive platform, a single vehicle “might now be considered a target-rich environment for patent assertion entities or competitors seeking to defend or expand their stake in the market.”Id.
With so many technological advances in the field, attorneys may anticipate more lawsuits pertaining to various patented utilities that vehicles contain or make use of. Because patent litigation requires substantial scientific analysis, experts in patents, the automotive industry, and emerging or newly-developed technology will perform an important function. Expert witnesses will also be able to assist lawyers in preparing for the types of cases they are most likely to encounter. Experts can also help determine what technologies might be most lucrative and which ones may have potential intellectual property (IP) issues. Patent attorneys should take note of the trends and advances to more effectively make a case for potential clients.
(2). Increased Auto Patenting: Another development that may cause more patent suits to be filed is the “increasing rate of patenting in the automotive industry—as well as in other industries whose technologies are being incorporated into cars.” Id.For instance, with autonomous driving systems, the number of patents has risen dramatically in recent years. See id.According to one study, patents of this type have increased nearly six-fold over the last ten years. See id.
What the extraordinary growth of auto-related patents suggests is “an increasing focus by those in the automotive industry in developing robust patent portfolios in new technology areas.” Id.Moreover, “[b]ecause one of the primary purposes of patents is assertion, this trend dramatically increases the probability that at least some of these many new patents will be asserted in litigation.” Id. With the growth of automotive patents and corresponding rise of patent assertion and litigation, expert witnesses will play an invaluable role. Experts may assist as consultants for entities or individuals wishing to assert a particular patent, and their testimony may indispensable if litigation commences.
(3). New Industry Players: A final trend that may lead to additional patent litigation in the field deals with the parties involved in automotive technological development. See, e.g., id.In the past, there was scant “direct patent litigation between major automotive manufacturers.” Id.However, more and more entrepreneurs and entities are trying to “bring new technologies to the automotive platform,” and with “many more technology companies competing on equal footing, it will be harder” to avoid patent lawsuits. Id.This circumstance is particularly important because research has revealed that, for example, “while many of the top U.S. autonomous vehicle patents are established automakers,” a plethora of other companies have developed or are developing technology and “significant [patent] portfolios” in the industry. Id. Therefore, the auto field is experiencing not only an increase in the number of patents filed, but there are also more patent-holders. See id.
With new parties developing automotive technologies becoming patent stake-holders, legal disputes may arise swiftly. See, e.g., id.Moreover, the potential for litigation is high because of complex dynamics among developers and manufacturers. See id.Some attorneys have explained that “an increasing number of close collaborations between” various entities in the automotive technology arena may “lead to inventorship disputes. And product failures among new technology companies in the industry could lead to pressure to monetize their patent portfolios through litigation.” Id.Patent experts can help resolve complicated disagreements, handle cases with multiple parties, and address myriad competing claims.
Leading attorneys have suggested that the automotive field prepare itself for an influx of patent litigation. See id.Proactive strategies are recommended, and one way that lawyers can be proactive with clients is by consulting patent experts in early stages of development and with an eye towards potential lawsuits. Entities that provide technological advancements or manufacturer vehicles for which technologies are developed may wish to retain expert witnesses to “identify and refine their strongest patent claims for litigation.” Id. Experts can help factfinders determine how to resolve a fairly new range of cases that may become more common as automotive technology speeds ahead.