Autonomous vehicle patents: the next theater of [litigation] war? The burgeoning innovation of autonomous vehicle (“AV”) technology has spurred a precipitous race to secure corners of the market by the acquisition of intellectual property rights. An unprecedented volume of AV patent applications are flooding patent-granting offices around the globe; with AV technology advancing daily, the growth of proprietary claims is exponential. Accordingly, AV patent owners, and counsel, would benefit from brainstorming of the pragmatic and foreseeable future of the dynamic landscape of patent litigation. This article aims to offer a very brief and peripheral survey of hypothetical issues to inspiring discussion between AV patent owners and counsel who, directly or indirectly, oversee the legal management of a client’s intellectual property.
A few years ago, National Public Radio discussed the similarities between elevators and autonomous vehicles. (Remembering When Driverless Elevators Drew Skepticism, Morning Edition, NPR, July 31, 2015.) This discussion centered on how the automatic passenger elevator took over 50 years to become what it is today – not even a second thought about getting in and going. Originally, elevators required operators to guide the cars to the correct floor then manually open and close the doors. Mishaps happened and lawsuit arose. As time went on, automatic elevators with safety features became the norm. Yet, even after introduction of the automatic elevator, it took over 50 years for riders to get used to not having an operator in the car. There are many stories of operators remaining in the elevator simply to push the button to calm nerves and usher in a new era.
For those investing in the Autonomous Vehicle (“AV”) market by securing intellectual property (“IP”) rights, savvy management of an IP portfolio will require, at a minimum, an understanding of the expansive range of benefits and risks associated with each IP investment option. The emergence of AV technology brings intricacies and nuances, many of which are yet to be fully realized. To avoid downstream litigation and disputes, those seeking proprietary interests in the AV market with respect to IP, and respective counsel, should consistently refresh one’s understanding of the ever-changing (daily, almost) conditions of AV-related IP litigation landscape. This article offers considerations which can serve as good launching points for developing an iron-clad IP portfolio.
In 2018, California passed regulations allowing the State’s Department of Motor Vehicles (“DMV”) to issue permits related to the testing and public use of autonomous vehicles on the State’s public roadways. Those permits encompass all phases of the autonomous vehicle rollout, including human driver-accompanied testing, driverless testing, and full-blown public use (deployment). While the manufacturers work fervently to obtain first-mover advantages and bring these driverless vehicles to market, the public remains concerned over liability and where potential accident victims should turn if there is no other driver with whom to exchange insurance information.
As autonomous vehicles become mainstream, many questions remain about how to regulate auto manufacturers concerning the development and implementation of such technologies. Surprisingly, the federal government has yet to enact minimum design, safety, and performance standards governing autonomous vehicles. Instead, the federal government has left regulation up to individual states. Although several manufacturers, including Tesla and Google, announced they would assume liability if one of their autonomous vehicles causes a collision, the manufacturers recently sought assistance from Congress to loosen federal regulations on the development of autonomous vehicles.
In Washington, and in many other states, defendants in a car accident can assert that they were “suddenly confronted by an emergency through no negligence of his or her own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though it is not the wisest choice.” WPI 12.02. The sudden emergency doctrine applies when a person has been placed in a position of peril and must make an instinctive choice between courses of action after the peril has arisen. See Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 197, 668 P.2d 571 (1983) (citing Sandberg v. Spoelstra, 46 Wn.2d 776, 285 P.2d 564 (1955)). The sudden emergency doctrine is not available to one whose negligent conduct creates a hazard. Pidduck v. Henson, 2 Wn. App. 204, 206, 467 P.2d 322 (1970) (citing Tackett v. Milburn, 36 Wn.2d 349, 218 P.2d 298 (1950) and Miller v. Cody, 41 Wn.2d 775, 252 P.2d 303 (1953)); Tuttle v. Allstate Ins. Co., 134 Wn. App. 120, 131, 138 P.3d 1107 (2006); 16 Wash. Prac., Tort Law And Practice § 2:33 (4th ed.). Under such circumstances, negligence is a question of fact for the jury to decide. Rhaodes v. DeRosier, 14 Wash.App. 946, 546 P.2d 930 (Div. 1 1976).
Autonomous vehicles (“AV”), or vehicles that drive themselves absent human control, are no longer a dream, they are becoming a reality. In October, 2016, the National Highway Traffic Safety Administration (“NHTSA”) adopted the following six levels to classify vehicle automation, which originated from the Society of Automotive Engineers (“SAE”):
Just as autonomous vehicles are in their early stages, so is litigation involving autonomous vehicles. Although potential theories of liability have not been completely fleshed out in court, it is a safe bet we can expect the plaintiffs’ bar to bring negligence, product liability, and statutory claims. Autonomous vehicle manufacturers are currently testing different defenses, and autonomous vehicle manufacturers are expected to start creating other defenses which have not yet made a debut in civil litigation.
Generally, when we hear about autonomous vehicles, we hear about the innovations and strides being made by companies like Uber, Apple, Microsoft, and Google. Other than Tesla, it is rare we hear news about the traditional automakers performing vehicle testing: the Big Three of their respective regions. There is no doubt these companies will quickly start marketing and selling their branded autonomous vehicle. If they plan to start doing so in the State of Washington, they will likely need to add motor vehicle liability insurance to their coverage portfolio.
When driving the roads of San Diego it is easy to overlook autonomous vehicles (“AV”), the hazards attendant with new technology on our roads, and what it means to us. Indeed, there has been little coverage on AV testing or incidents here in San Diego. With the recent coverage of AV incidents in San Francisco, Las Vegas, and more recently Phoenix, San Diego has quietly hidden under the radar. However, beginning as early as 1997, San Diego has been at the forefront of AV testing.[i] The San Diego Association of Governments (“SANDAG”) was the first California planning agency to incorporate AV resources into its long term regional transportation plans. In SANDAG’s 2015 regional transportation report, it began planning and outlining the implementation of driverless vehicles on San Diego roadways as early as 2025.[ii]
As driverless cars become a reality on American roadways, major automakers and technology companies are scrambling to get a piece of the autonomous vehicle market. Apple recently signed a deal with Volkswagen to develop a driverless vehicle. GM’s self-driving unit Cruise announced its intention to begin mass production of autonomous vehicles next year.  Not to be outdone by its historic rival, Ford intends to launch a cargo delivery service using its own self-driving cars by 2021.
San Diego Metro – April 2, 2018
Civil litigation firm Tyson & Mendes has launched a new practice group dedicated to the defense of insurers and manufacturers of autonomous vehicles. The Autonomous Vehicles Liability Litigation practice group, led by Managing Partner Robert Tyson and Partner Cayce Greiner, provides clients with the firm’s automotive liability litigation experience and knowledge about the ever-changing regulation and legislation arising in response to more autonomous vehicles on the road.