Here, Stuart Latham, partner and patent attorney at Withers & Rogers, discusses the advancement of innovation in driverless motoring
For innovators of technologies used in the development of autonomous vehicles (AV), the legislative and commercial landscape is both complex and dynamic. Knowing where and when to invest in R&D programmes or real-world trials could make the difference between success and failure. Knowing how to protect their inventions on route to market is also critical.
Autonomous vehicles (AV) and the whole concept of driverless motoring have made headlines frequently in the last few years, due to the huge societal impact they will inevitably bring. As innovation in this area involves combining the carefully regulated vehicular industry with the software and AI industries, the complexities involved in the design and development of AVs are significant. This is perhaps best illustrated by Tesla’s full autopilot abilities being ‘two years away’ every year since Elon Musk first announced the feature in 2014.
Autonomous vehicles regulation
However, the complexities extend far beyond engineering problems, to legal and other geographical considerations. For example, Audi developed ‘eyes-off’ conditional Level 3 autonomous functionality with the A8 flagship sedan that launched in late 2018. However, the system, called Traffic Jam Pilot, has yet to be approved for sale. Different countries impose different regulations on testing AVs, and changeable weather in parts of Europe can complicate driving performance in ways that even the most skilled human drivers find hard to cope with. Consequently, selecting the right country for the research and development of AV-related technologies can make or break a business.
Despite the inherent challenges, the AV sector is projected to grow significantly in the coming years. The global market for CAV technologies is expected to reach £63 billion by 2035, according to research conducted by the Centre for Connected and Autonomous Vehicles (CCAV) and the sale of AVs could represent 20 percent1 of global vehicle sales in 2025.
In order to attract R&D investment to their shores, many countries are introducing initiatives to support innovators in the development of these game-changing technologies.
In 2018, the European Commission published a paper announcing up to €450 million under its Connecting Europe Facility to support digitisation in transport and increased use of automation. The paper included proposals to revise minimum standards for motor vehicle safety, update the rules on road infrastructure safety management, and introduce new rules on the sharing of vehicle data. EU Regulation 2018/858, scheduled to come into force on September 2020, introduces a new vehicle type approval regime and increases checks for cars already on the EU market. Although these efforts have been well received, auto industry lobbyists are unhappy with the pace of regulatory progress at the United Nations Economic Commission for Europe (UNECE), the governing body responsible for setting standards for the rest of the world to follow.
At European level, member states have been updating national laws and focusing their efforts on finding ways to facilitate AV development. In late 2018, the Netherlands introduced new laws governing the experimental use of self-driving vehicles and are exploring AV applications that extend further than just cars, with an emphasis in freight with truck platooning and public transportation. Notably, the Dutch Vehicle Authority (RDW), the main road authority (Rijkswaterstaat) and the central office for driving exams (CBR) are preparing a Software Driving Licence for a vehicle, which is meant to assess the extent to which a vehicle can produce safe and predictable automated driving behaviour that aligns as closely as possible to human performance in an open traffic system.
Despite its comparatively more challenging weather conditions, Sweden is also a front-runner in the AV field, with a high adoption rate of EVs necessitating new infrastructure that facilitates AV deployment. Sweden has already permitted a number of AV pilots, including a driverless bus service in northern Stockholm, and has allowed Volvo and Einride and DB Schenker to begin real-world tests of self-driving cars and trucks.
Since 2018, Germany has been developing a new legal framework to allow autonomous driving in specific settings. Currently, level 3 and 4 AVs must allow for manual oversteering at any time and the driver must be constantly aware and able to claim control. Third-party access to that data is limited to law enforcement measures, including civil claims by third parties.
Finland’s AV efforts need to overcome the cold climate and icy roads, and the government is focusing its efforts in that direction as shown by the state-funded robot car, Martti, which can drive autonomously on snow-covered roads. Driverless minibuses also are a priority, with Helsinki introducing a ‘Robobus’ service in 2018. In late 2017 the Finnish government also proposed a new Road Traffic Act, which anticipates technological advances in transport, including automation and data utilisation. Demonstrating a forward-thinking approach, the RTA uses an example of a person controlling a vehicle remotely, who even when not in the car, is considered a `road user’. Finland has also initiated a programme to replace the yellow continuous lines on the road with white lines, which are easier to detect by machine vision.
France has established a new legislative framework through the “PACTE” bill, a huge, ‘catch-all’ law, which took effect on 1 October 2019, providing a regulatory framework for open-road testing of level 3 to 5 AVs from the beginning of 2019. Also notably, France has signed a memorandum of cooperation with Japan in fields that relate to AVs, signalling their commitment to further development.
In the UK, in 2018 Parliament passed the ‘Automated and Electric Vehicles Act’, which adapts the existing motor insurance framework by extending compulsory insurance to AVs, as well as the driver. However, government efforts are hindered due to lacking 4G coverage, global connectivity, quality of roads (especially smaller roads) and logistics infrastructure. In an attempt to address this, extensive investments are being made to connect 5G testbeds and test tracks. Currently, the UK Government is also preparing a new legal framework relating to autonomous vehicles, which is subject to public consultation until 16 January 2020. The final recommendations are expected in 2021.
As well as taking steps to facilitate AV-related innovation activity and prepare the way for driverless motoring, many EU member states have simplified the process of securing patent protection for new inventions.
The planned introduction of a pan-European Unitary Patent System, which the UK is already signed up to regardless of what happens with Brexit, promises to simplify the patent system considerably. Under the new system, businesses will be able to apply for a single Unitary Patent, spanning all participating countries of the EU, without the need to validate the patent at the jurisdictional level. For innovators of AV-related technologies, the new system could provide a cost-effective way to secure commercial protection across the EU, allowing time for markets and regulatory environments to continue to evolve.
Progress towards the Unitary Patent System has been delayed due to Brexit and a constitutional challenge in Germany. However, once these hurdles are overcome, the newly-harmonised system should bring benefits for European innovators and help to attract investment.
Among those set to benefit most from the incoming changes to the patent system are innovators in dynamic or evolving markets, such as the AV industry. A single renewal fee will be payable annually on each Unitary Patent, which will be equivalent to the current cost of renewal fees in the ‘top four’ European countries – UK, Germany, France and Holland.
Under the current system, once a European patent is granted, the patent owner will normally validate it in just a handful of EU countries. By contrast, with a new Unitary Patent, innovators will have the potential in time to cover 26 of the 27 member states for a similar cost. The coverage provided in these ‘bonus’ countries could deliver unexpected benefits to some companies, particularly if there is uncertainty about where market opportunities could arise in the future due to the evolving regulatory and technological landscape.
1 Forecast by Boston Consulting Group.
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