The pandemic’s impact on EV and AV R&D is forcing technologists to navigate continued uncertainty around patenting AI technology. By Chethan Srinivasa
Not surprisingly, the pandemic impacted the automotive industry, including electric and autonomous vehicle (E/AV) research and development. E/AV companies laid off workers, delayed testing, and postponed vehicle launches. Also during this time, there continued to be uncertainty around patenting AI technology, and the US Patent and Trademark Office (USPTO) sought public feedback on the impact of AI on intellectual property laws. In spite of the negative impacts of the pandemic, and the uncertainty around AI patents, E/AV companies continued to innovate at a breakneck pace and leverage their patent portfolios to secure significant funding amidst the pandemic.
For example, AV companies applied their technology to solve unique problems posed by the pandemic. Some companies deployed AVs to deliver medical supplies, food, and packages. Others deployed AVs to disinfect areas, and formed partnerships to accelerate the development of AV technology to mitigate the spread of the virus. Some companies repurposed their technology to assist with various efforts, including charitable deliveries. Robotaxi services were deployed to provide an alternative transportation system for people, and were modified to provide a temperature measurement and take disinfection measures. In another example, using a software patch configured for vehicle self-sterilisation, a company was able to disinfect its fleet of vehicles.
Since E/AV companies increasingly leverage AI-related inventions to perform a wide range of tasks, such as image recognition, autonomous navigation, obstacle avoidance, battery management, etc., the uncertainty around patenting AI-related inventions that may be deemed ineligible abstract ideas may pose challenges to consistently building out a patent portfolio
To stand out amongst their peers and attract investors during the pandemic, E/AV companies can leverage their patent portfolios to highlight their proprietary innovations, and robust research and development pipeline. The following chart overlays the number of patent filings/month (according to the USPTO’s public patent database) with funding events (according to CrunchBase) as of September 2020 for an illustrative well-funded E/AV company that raised funds during the pandemic.
In January 2017, LiDAR sensor company Ouster had ten patent filings contemporaneously with its first funding event for US$3m. Ouster continued with two months of filing eight patent applications per month until its next funding event of US$27m in December 2017. Again, Ouster continued its patent programme by filing 17, 14, and 11 patent applications in May 2018, July 2018, and December 2018, respectively, which was followed by its biggest funding event of US$60m in March 2019, and another US$45m during the pandemic in September 2020.
The optics of a consistent, deliberate patent programme can help attract investors or result in a more significant raise. However, since E/AV companies increasingly leverage AI-related inventions to perform a wide range of tasks, such as image recognition, autonomous navigation, obstacle avoidance, battery management, etc., the uncertainty around patenting AI-related inventions that may be deemed ineligible abstract ideas may pose challenges to consistently building out a patent portfolio.
In October 2020, the USPTO published a report titled “Public Views on Artificial Intelligence and Intellectual Property Policy”, summarising the feedback it received concerning issues of patent policy for AI technologies, including the ability of current US patent laws to address whether inventions including an application of AI are eligible for patent protection, and whether inventions “made” by AI are eligible for patent protection.
To stand out amongst their peers and attract investors during the pandemic, E/AV companies can leverage their patent portfolios to highlight their proprietary innovations, and robust research and development pipeline
According to the report, the current state of the art is limited to “narrow” AI systems that perform individual tasks in well-defined domains (e.g., image recognition), as opposed to artificial general intelligence (AGI) akin to that possessed by humankind. The majority of commenters agreed that since narrow AI can be viewed as a subset of computer-implemented inventions, the current USPTO guidance on patent subject matter eligibility is applicable and should not be treated any differently than other computer-implemented inventions. Thus, AI inventions should be deemed patent eligible and satisfy the USPTO’s patent statutes if the invention is described with sufficient detail, including the hardware and software components, to show that the inventor had possession of the full scope of the claimed invention.
While the pandemic had negative impacts across numerous industries, E/AV companies continued to innovate and achieve their business objectives using a consistent and strategic approach to patenting E/AV technology leveraging narrow AI.
 Patent applications typically do not become public until 18 months after filing, so Figure 1 likely represent patent filings as of February 2019.
About the author: Chethan Srinivasa is Senior Partner and IP lawyer at Foley & Lardner