Patenting of autonomous driving – SDV: self-driving vehicles

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Along with the trend of digitalisation transformation, the mobility sector is also entering into the digitalised market of innovation with connected vehicles. Together with the advanced information and communication technology (ICT), machine learning and artificial intelligence, the rapidly growing computation ability and data storage ability, a cutting-edge era of the transport sector with smart mobility solutions is arising.

Smart mobility contains two major trends. The first trend is the decarbonisation of road transport by innovating in sustainable propulsion technologies and the promotion of electric vehicles. The second major trend is the increasing level of automation towards fully self-driving vehicles (SDV), which brings significant added value to the whole human society from social, economic and environmental perspectives due to improved safety, mitigated traffic congestion, widely distributed public transport service, increased fuel efficiency and reduced pollution, etc.

According to a study carried out with the European Council for Automotive R&D (EUCAR), it is found that from 2011 to 2017, patent applications at the European Patent Office (EPO) for automated driving increased by 330%, compared to 16% across all technologies in the same period. And in the past ten years, the EPO received around 18 000 patent applications related to self-driving vehicles, with nearly 4 000 in 2017 alone. Patent protection strategies in the area of self-driving vehicle technology showing the mixed features of combining the ICT and the automotive technologies are more closely resemble those in the ICT sector than those in the traditional automotive industry.

Mapping SDV inventions to patent data

In light of SDV, the increasing patent applications at the EPO cover two main sectors of innovations:

Automated vehicle platform: underlying vehicle hardware and software technologies related to perception, analysis, and decision as well as computing and vehicle handling.
Smart environment: technologies enabling the communication and interaction between the vehicles and the surroundings as well as smart logistics.

Table 1 below illustrates in detail the SDV inventions from these two main sectors in different technology fields and examples of involved technologies.

Table 1: The cartography of SDV inventions (Source: EPO)

According to the patent statistics based on patent applications filed at the EPO in SDV technologies, companies operating in automotive, transport or related machinery & electrical equipment filed half of these SDV patent applications, while companies specialised in information and communication technologies (ICT for automotive) filed 32.8% and Telecom companies 13.6%. Automotive companies have a particularly high share of patent applications in vehicle handling (more than 63%), and strong positions in smart logistics (48.7%), perception, analysis & decision (44.4%). Automotive and ICT for automotive companies lead the computing technology field with more than 30% of patent applications respectively. In terms of communication technology applied in SDV, it is dominated by the ICT for automotive with 42.6% and Telecom with 25.1%.

Characteristics of SDV inventions

Inventions related to software account for up to 50% of patent applications in automotive technologies, especially in self-driving vehicles. EPO applies the existing approach for computer-implemented inventions (CII) to these innovative technologies related to self-driving vehicles. In general, CII refers to the inventions involving the use of a computer, computer network or other programmable apparatus which usually comprises a mix of technical and non-technical features. Similar to all other inventions, the computer-implemented inventions must be novel, inventive and industry applicable. According to the case law of the Boards of Appeal, a framework called ” two-hurdle approach ” has been developed for controlling computer-implemented inventions.

The first hurdle refers to the patent eligibility, which can be fulfilled if the claimed subject-matter involves at least one technical feature and is directed at a technical process or the internal functioning of the computer program, for example, a method of controlling an anti-lock braking system in a car.

The second hurdle refers to the patentability related to the inventive step. In terms of eligibility, no assessment related to the prior art is performed. By contrast, in terms of patentability, the prior art serves as a starting point for the assessment of novelty and inventive step of the claimed inventions. In order to be inventive, they shall have a technical character and solve a technical problem in a novel and non-obvious manner. Therein, only technical features are assessed in case of a mix of non-technical and technical features and the inventive step is further assessed with the CMOVIK approach.

The COMVIK approach has been established and confirmed in decision G1/19, which is a special application of the problem-solution approach to the inventions with mixed technical and non-technical features. According to the COMVIK approach, the first step is to identify all features contributing to the technical character of the invention. The second step is to identify the closest prior art. The third step is to distinguish the application on hand and the closest prior art. Based on the difference, those features making technical contributions and bringing technical effects are further identified. If no difference can be identified, the application is going to be objected to due to the lack of novelty. If there is a difference, but the difference does not make any technical contribution, the application is going to be objected to due to the lack of inventiveness. Subsequently, it is further assessed whether the claimed technical solution to the objective technical problem is considered obvious for the person skilled in the art. If not, the application is considered as involving an inventive step.

Case Studies

In the case of T 2142/09, the invention relates to a process and system for analyzing deformations in motor vehicles. The appellant argued that the reference in the contested decision to features “implicitly” disclosed in document D7 implied that the Examining Division had based its refusal of the present application on hindsight. The Board acknowledges that the subject-matter of claim 1 of the appellant’s request is new within the meaning of Article 54 EPC. However, the Board finds that the present application does not disclose any special teaching for the automatic implementation of a set of functions which are essentially known from the prior art document D7. It would have been obvious to a skilled person, starting from the teaching of document D7 and facing the task of conceiving a process for the identification, analysis and evaluation of deformations in motor vehicles which did not require the direct intervention of an expert, to arrive at a process for automatically performing a combination of steps as recited in claim 1 of the appellant’s request. Hence, the Board concludes that the subject-matter of claim 1 does not involve an inventive step within the meaning of Article 56 EPC. An invention can be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.
In the case of T 1986/13, the invention relates to an augmented reality-based system and method providing status and control of unmanned vehicles. This appeal is against the decision of the examining division refusing this patent. D1 is considered in the same technical field as the application, which relates to a method of identifying and controlling a teleoperated unmanned helicopter to fly through a three-dimensional environment. The objective technical problem starting from D1 can be formulated as to provide an alternative method for control of the vehicle when it is visible from the viewpoint of the controlling person. D1 itself does not provide any hint to the solution as claimed. D1 does not suggest other possibilities for controlling the vehicle other than providing the controlling person with a view of the environment from the position of the vehicle and a map as an aid for orientation. Therefore, the claimed method is not rendered obvious to the skilled person having regard to D1 only. D2 discloses a method in which an image of a device is captured and displayed to a person. Starting from D1, there is no hint to the skilled person to consider a combination with the control method described in D2. Therefore, the skilled person would not arrive at the method as claimed having regard to D1 and D2 in combination. The same applies to D3, which discloses a method of operating an unmanned transport vehicle. Since the method is not rendered obvious by the available prior art represented by D1, D2 and D3, taken alone or in combination, the method of claim 1 thus meets the requirement of Article 56 EPC. The invention is inventive.
In the case of T 2218/19, the invention in suit relates to a system for detecting vehicles. The appeal is against the opposition division’s interlocutory decision to maintain the patent in amended form. The opponent argued that the two distinguishing features do not lead to a combined technical effect and that the technical effect suggested by the respondent in its reply was “not implied or at least related to the technical problem initially suggested in the opposed patent”. The respondent argued in its reply with regard to the technical effect that the distinguishing features make “it is possible to detect a license plate ‘in breach’ and then properly, reliably and precisely identifying the vehicle having that very one license plate”. The distinguishing features solved the problem of “making sure that a certain sanction is reliably applied to a vehicle which actually violated a traffic regulation and not to an ‘innocent’ vehicle in the vicinity”.The board holds that the distinguishing features solve independent problems. With one of the features, the board concurs that the skilled person, facing the problem set out above, would use the SFM technique known from the prior art document and arrive at this feature without exercising an inventive step. However, with the second feature, the board agrees with the appellant that the skilled person would make use of the technology generally available in 2006, such as better cameras, faster computers and more powerful OCR programs. Doing so would not, however, result in the second feature. Therefore, the subject-matter of claim 1 is considered non-obvious which involves an inventive step within the meaning of Article 56 EPC.
In the case of T 0595/16, the invention in suit relates to control procedure for road toll collection. The appeal is against the examining division’s decision to refuse the application due to that the application did not meet the requirements of, inter alia, Article 56 EPC. D4 is considered as the closest prior art. The appellant explained that the method according to D4 does not have a device corresponding to the control point compared to the present invention. Indeed, D4 does not mention any controls at control points. However, a “checkpoint” is not a device but a roadside checkpoint, namely a place where enforcement officers are standing. Therefore, this distinguishing feature is considered non-technical. Because the need for a vehicle to be inspected according to claim 1 does not represent a technical requirement, but merely consists of operational instructions to inspectors to subject certain vehicles to a toll inspection. Therefore, no technical problem is solved by the subject-matter of claim 1 can be identified. The subject-matter of claim 1 thus does not involve an inventive step under Article 56 EPC.
In the case of T 0772/18, the invention in suit relates to a method for detecting a movement characteristic of a vehicle. The aim of the invention is to determine the causes of the fuel consumption of a vehicle. The appeal is against the Examining Division’s decision to reject the patent application for lack of inventive step under Article 56 EPC. The technical character was not objected to by the examining division and is also not questioned by the board. However, the board agrees with the Examining Division that claim 1 essentially represents a determination of vehicle energy based on physical principles for a recorded speed profile of a vehicle, which is known from D2. The board agrees with the appellant that D2 does not disclose the calculation of reference energy and a corresponding fuel consumption characteristic. However, the mere calculation of such a character does not include any feedback to the driver or any other output of this information. That means, this information cannot play a role in the driver’s interaction with the vehicle. Even assuming such feedback, the board cannot see any technical effect. Furthermore, the information displayed to the driver does not contain any concrete instructions on how to drive the vehicle. Rather, it also depends on the driver’s preferences, for example on the selection of more efficient or less efficient gears. Therefore, this is not sufficient to solve a technical problem. Therefore, the board does not agree on any technical effect according to Claim 1, which is therefore considered not inventive under Article 56 EPC.

Summary

In short, as the emerging technology involving most of the high-tech companies, patenting SDV-related technologies is basically similar to patenting those Computer-Implemented Inventions at the EPO, which shall fulfil patent eligibility by defining subject-matter directed to a technical process or involving the use of technical means and patentability by identifying the technical problem to be solved and all distinguishing technical features contributing to the solution of the identified technical problem along with the achieved technical effect (please refer to another recent post dedicated to CII practice from us for more details).