European patents and the shake-up of the automotive industry - assessing inventive step
The automotive industry is arguably going through the biggest transition in its history. One reason is the ongoing development of self-driving vehicles. Another reason is the phasing out of the internal combustion engine (ICE) in favour of hybrid and electric vehicles. Whilst some well-established automotive companies such as Toyota have been developing hybrid vehicles for many years, the move to fully electric is being spearheaded by governments to help combat climate change. For example, the sale of all new conventional petrol and diesel cars will be banned in the UK from 2030, with the European Union proposing a similar ban by 2035.
Traditional automotive manufacturers will no doubt remain major players in the market. For example, many such companies are already beginning to offer fully electric versions of their most popular models. Some are even looking to lead the way by offering a whole new range of fully electric vehicles (see, for example, Toyota’s fully electric bZ range).
However, the transition to new technology is also opening the field to companies other than these traditional car makers.
There is, for example, Tesla. With its trillion-dollar market valuation, charismatic CEO and fully electric, touchscreen-controlled products, it feels more like a Silicon Valley tech company than a car company. Other companies are also getting involved, including tech giants such as Apple (with its rumoured electric car) and Sony (with its recent unveiling of a second Vision-S concept car and the expected creation of a new electric car company, Sony Mobility).
Why are tech companies getting involved?
Electric, self-driving cars can be seen as quite different products to traditional ICE cars. This makes them a more relevant proposition for tech companies.
First, using a battery and set of electric motors instead of an ICE means much of the specialist knowhow related to ICEs is no longer required. At the same time, the knowledge tech companies have of batteries and electronic systems is potentially more valuable than ever before.
Second, to operate safely, self-driving cars must acquire and process huge amounts of data, far more so than even the most technically-advanced car driven by a human. This requires a large number of various types of sensors and the capability to efficiently communicate and process the data they generate. Tech companies are experts at this.
Third, once cars are able to safely drive themselves over long distances without human involvement, a whole new approach to immersive, in-car digital entertainment is envisaged. Again, tech companies (especially those with experience in the audio-visual and content creation fields) are perfectly placed to help with this.
Is patent protection important?
In light of these developments, it is expected the automotive market will become increasingly complex and competitive in the coming years. Obtaining patent protection for new automotive technology is therefore one way in which players in the market might help strengthen their position. This applies to both brand new technology and existing technology from other fields which is newly adapted for use in the automotive sector. The latter may be particularly important for companies looking to use technology they have developed in other fields in an automotive application for the first time.
Adapted technology and inventive step in Europe
In order for technology to be patentable at the European Patent Office (EPO), it must be new (novel) and involve an inventive step. Novelty is relatively straightforward to show (and, often, a similar standard is applied as in other jurisdictions). Inventive step is more subjective. However, it can be helpful that the EPO generally applies a specific, formulaic approach to assessing inventive step. This is the so-called “problem-and-solution” approach.
The problem-and-solution approach potentially makes the EPO an attractive choice for patent applicants looking to protect inventions which adapt existing technology for use in a different technical field.
The problem-and-solution approach
The problem-and-solution approach has three steps.
- The “closest prior art” to the invention must be established.
- The “objective technical problem” must be identified. This is derived from the technical effect or advantage of the distinguishing feature(s) of the invention compared to the closest prior art.
- It must be determined whether the skilled person, starting from the closest prior art and looking to solve the objective technical problem, would have arrived at the invention from the teachings of the prior art without using inventive skill. If not, then the invention involves an inventive step.
The assessment of the third step can be favourable to inventions in which technology already existing in one technical field is applied to a different technical field. As made clear by the EPO Guidelines for Examination, the test for the third step is whether the skilled person would (not simply could, but would) have arrived at the invention from the teachings of the prior art. This is referred to as the “could-would” approach. It is also made clear that the skilled person is generally expected to look for a solution to the objective technical problem in neighbouring or more general technical fields to that of the invention. They may consider remote technical fields. However, the prior art must prompt them to do this.
Thus, for an invention in the automotive field newly using existing technology from a remote technical field (such as smartphones, entertainment devices, and cameras), if there is no prompt in the prior art teachings that would have led the skilled person to apply that technology to the automotive field, there is potentially a good argument in favour of inventive step at the EPO.
The invention is an automotive self-driving system using a known image sensor with a fast response time originally developed to allow more responsive smartphone photography. Features A, B and C of the image sensor work in combination to provide the fast response time. The inventors have recognised that the fast response time of the image sensor makes it particularly good for use with an automotive self-driving system, since it allows obstacles in the road to be detected in captured images more quickly. The safety of the automotive-self driving system is therefore improved.
Due to smartphone imaging being a “remote” technical field to the automotive technical field, a broad claim scope could potentially be obtained. For example, a potentially allowable independent claim could be: “An automotive self-driving system comprising an image sensor comprising features A, B and C.”
Because the claim specifically defines an “automotive self-driving system” comprising the image sensor, the claim is new even though the image sensor itself is known.
Furthermore, starting from the closest prior art of a known automotive self-driving system (which does not use the image sensor), the objective technical problem of improved safety is solved. If there are no teachings in the prior art which would have prompted the skilled person to look to the field of smartphone imaging when looking to solve the problem of improved safety in an automotive self-driving system, then there is potentially a good argument that the claim involves an inventive step.
If there are further new features included in the image sensor and/or automotive self-driving system (for example, a further feature D which formats the data output by the image sensor using hardware to reduce image pre-processing requirements, thereby further increasing the image processing speed and therefore the reaction time and safety of the automotive self-driving system), these can be included in dependent claim(s). These provide potential fall-back positions if, for example, the EPO believes the prior art does include a suitable prompt which would have led the skilled person to consider the smartphone imaging field.
It is therefore viable, in the first instance, to seek a relatively broad scope of protection for newly applying existing technology to the automotive field at the EPO. At the same time, the option to seek a narrower scope of protection, if necessary, can be easily maintained.
Cars on the road are likely to look and feel very different in the coming years. The phasing out of ICEs and the development of autonomous driving potentially represent the biggest change to the automotive industry since its inception. Obtaining patent protection for new and repurposed technology is one way in which companies can help bolster their position in this increasingly complex and competitive market. The European patent system, with its well-established problem-and-solution approach to inventive step, seems well placed to play its part in this.