A robot is a highly complex technical system, integrating mechanics, sensors, electronics, control software and artificial intelligence. As robotics reaches a stage of more widespread deployment, securing intellectual property protection to preserve a competitive advantage is essential. However, the complexity of robotics can make it challenging to identify what aspect will yield a patent of value.
Inventors often have a much higher bar for what they consider to be patentable than intellectual property law. They may see a development as routine or obvious but, put into context of the encompassing robotic system, even a small internal change can have a significant impact on a robot’s external function.
But discovering that, in theory, many things could be patentable is just the first step. You may think that trying to get as much coverage is the best route, but IP is more than protection. It is a strategic asset which, when dealt with thoughtfully, can be highly rewarding. Especially in a sector like robotics which is rapidly evolving and becoming increasingly crowded, with many different companies and technologies coming into play.
On 30th September, Partner Andrew White took part in a webinar with IP Business Academy, discussing the questions which may arise when building an IP strategy for innovation in the field of robotics. Click the video below to watch the full webinar or read on for an overview of the key insights.
Finding the technical effect
When crafting an IP strategy from scratch, it is important to firstly understand what exactly a patent is trying to protect. A patent gives you the power to exclude your competitors from selling your invention. But to be granted a patent, your invention must be novel, non-obvious and make a technical contribution.
AI and software are integral to robotic systems, forming the brain which controls the robot’s physical parts. There are a lot of misconceptions surrounding what can and cannot be patented when it comes to the AI and software, but it is still very possible to protect an AI or software invention, as long as the invention provides a technical solution to a technical problem. For example, software developments may improve a robot’s ability to regulate its temperature or advanced hardware in the robot’s hand could lead to improved dexterity.
In robotics, the technical application often lies in the interaction between the invention and other elements of the system, and how this impacts the robot’s capabilities.For example, the functional relationship between sectors and actuators, perception and movement, software and hardware, will determine how a machine interprets its surroundings, adjusts its movements and to what extent it completes a desired task.
The fact that an AI model used within a robot does not exist independently, but always as part of an interaction with the real world can make finding the technical application in robotics more straightforward. Nevertheless, AI models or software which may have a useful application in robotics are not always developed with that in mind.
Filing with intention
We have discussed the factors which determine whether or not an invention may be patentable. The next step in an effective IP strategy is rightsizing. In other words, just because you can patent something, doesn’t mean that you should. A patent should play a strategic role in relation to your business goals and there should be valid commercial reason to pursue a patent. Robotic systems are highly complex with many interacting parts, so using a matrix to rate each element against different criteria which will determine patent value can help cut through the noise.
As discussed, patentability is key and refers to how likely a patent is likely to be granted after filing. But there are two other main criteria which are just as important. Firstly, you need to consider commercial potential. The long-term value of your invention is ultimately dependent on what customers will buy. If a customer is paying for a specific use case, you will be in a winning position if you have patented that. Secondly, you should consider how easy it will be to detect infringement of the patent by third parties. For software inventions, for example, it can be very difficult to know if competitors are infringing on your patent. If you patent an invention, it necessarily ends up in the public domain; therefore, if you can never detect infringement, it may be better to keep the invention as a trade secret, so competitors cannot gain access to it.
Ultimately, your filing approach will depend on your competitors and what the sector is doing, as well as the business model for your company. For example, whether you intend on primarily licensing your technology or using it yourself will impact your strategic priorities.
Considering the other players
Robotics companies rarely operate in a bubble. A functioning robotic system brings together many different forms of technology, often supplied or developed by different parties. As a result, it can be difficult for any one player to obtain control over the entire system and attempting to do so may not always be the most commercially effective approach.
Companies can be strategic about which technologies they share, license or make available, and which will remain under their sole ownership. Licensing can enable them to access technologies they do not want to develop themselves, but ownership should be carefully managed, establishing at an early stage who owns any resulting IP, how it can be used, and whether rights extend to future developments or improvements.
These relationships can also create challenges for a company’s freedom to operate (FTO). In a crowded and rapidly developing field such as robotics, where a company’s product incorporates technologies developed by multiple players, third-party IP rights need to be considered, and it may not always be possible to eliminate the risk of infringement entirely.
Companies can carefully monitor competitor activity, but sometimes it may be impossible to completely mitigate the risk of infringement. A strong IP portfolio can create opportunities for cross-licensing or provide negotiating leverage if disputes arise with competitors.
Revising your IP strategy
It is crucial for robotics companies to revisit their IP strategy on a regular basis and judge whether it still aligns with their commercial goals as their technology, funding position and target markets develop.
Obtaining patent protection can be a lengthy process. A company may initially file a few patent applications which support their business plan and then encounter significant costs further down the line. At the same time, the company may have created new IP or changed its commercial priorities.
There can be a natural reluctance to prune a projected portfolio if you have already spent money, but if there’s been a shift in where the value lies, it is important to adjust your strategy accordingly.
Adapting to changing technology
AI and software models used in robotics are evolving at a rapid pace, but the patent system is relatively slow. Robotics companies need to consider the risk of filing a patent which could be commercially obsolete in three or four years.
Firstly, there is value to having a patent pending, as it shows intent and clear direction, as well as ownership of IP and a willingness to strategically manage it. Secondly, to file a patent which will have long-lasting value, this may mean focusing less on what a particular iteration of a model can achieve and more on the underlying functionality, which brings us back to our initial discussion of technical contribution. What problem does the technology solve? How does it interact with other components of the robotic system? What technical effect does it produce, and what aspects of that interaction are likely to remain relevant even as the model changes?
Our attorneys have specialist expertise across robotics, AI, software and related technologies. We make sure to get to know each of our client’s specific commercial objectives, enabling us to translate our in-depth understanding of the sector’s technology and competitive landscape into a tailored IP strategy. From assessing patentability and identifying which aspects of an invention are worth protecting, to determining where and when to file and how to build a portfolio that maximises commercial value, we make your IP work for you.
To ask our attorneys any questions you may have, click here.
