Robot Patent Wars – Innovators Must Prepare for a more Litigious World

Over the past decade, the robotics sector has been advancing at pace. Early-stage, experimental research projects have given way to major-scale R&D programmes aimed at finding new applications for robotics technologies in a variety of industry sectors. As it stands, we are looking at commercial robots generating significant profits.

Such rapid market expansion brings additional risks for innovators however. Robotics has become an increasingly litigious field of research science, where the risk of infringing patents owned by a third party, or having one’s own patents infringed, is on the rise. Businesses or individuals found to have infringed a third party’s patent rights could face an injunction and be forced to withdraw their commercial product from the market.

There is also a significant market opportunity of course. The robotics sector is continuing to grow, with research suggesting that the market is projected to reach US$34.94bn this year. Innovators who succeed in developing a market-leading product could potentially license their patented technology to third parties and earn royalties for years to come.

In the meantime, given the absence of any dominant market leaders, more patent-related disputes are likely as robotics innovators jostle for position in a fast-growing market.

Keeping an eye on global disputes

Robotics solutions for use in the warehouse and logistics sector are more likely to engender patent litigation due to the commercial nature of their application. The Ocado v AutoStore lawsuit is a prime example of this, with the latter asserting a total of six patent infringement claims against the grocery tech giant in late 2020 and the former counterclaiming for infringement of multiple patents of their own.

Notably, this lawsuit is the largest patent infringement case of its kind involving a robotics manufacturer and the high-profile nature of the action emphasises the substantial risk that innovators face when developing new products and bringing them to market. This is particularly true of companies who may wish to bring an infringement action against a competitor, only to find that they may be the perpetrator of a similar infringement.

Ongoing litigation between engineering and robotics design firm, Boston Dynamics, and rival, Ghost Robotics, over the alleged infringement of seven patents associated with its four-legged robot, ‘Spot’, should further encourage caution when entering the market.

Both lawsuits demonstrate the lengths robotics companies are prepared to go to, to secure a potentially lucrative, monopoly stake in a fast-growing market.

The importance of due diligence

In a fast-developing market, it is particularly important for robotics innovators to secure patent protection for their innovations at an early stage, if only to avoid a competitor coming up with something similar and securing exclusivity rights ahead of them.

The commercial value of patent rights also means that they should be well protected. For example, it may be tempting for a new entrant to the market to share their patented technologies in the spirit of openness. However, to do so without formalising an agreement setting out who owns what, and who will own any future IP rights, would be naïve. This approach could leave them collaborating in a project that delivers no commercial value.

Before investing in R&D activity, it is vital to carry out research to identify any existing patents in the same technological sphere that could pose a risk of litigation. The embarrassment and damage, both financial and reputational, of inadvertently infringing a competitor’s patent and losing a patent litigation case should not be understated. To mitigate this risk, innovators should prioritise due diligence to identify their freedom to operate solutions for a given market. Mapping the patent-filing landscape is key, especially when a competitor’s portfolio is sizeable and negotiating a licensing agreement is unlikely to be possible.

Safeguarding against infringement

As UK law prohibits individuals and companies from making unjustified threats of litigation, robotics companies that suspect an infringement has occurred should seek the help of a patent attorney. Companies which are over-zealous in their accusations could be forced to pay damages, so it is important to assess a situation carefully before filing a lawsuit.

Patent litigation should never be the first option when a potential infringement has occurred. It should only be pursued if mediation, negotiation, and considering licensing deals have failed to provide a solution. In fact, before any action is taken, innovators should consider the commercial outcome and base their decision to proceed or not on this information.

A common commercial settlement is for companies to cross-licence their rights, mutually agreeing to allow the other to act. However, in order to keep this option open, it is important to maintain one’s own patent portfolio, giving a stronger position when entering negotiations. A company who maintains a strong patent filing strategy may therefore be at lower risk of losing out in the case of infringement.

With so many companies developing products, and with varying degrees of transparency surrounding their design and operation, awareness of the rules governing patents and how to protect them varies from company to company. To this end, innovators entering the space should research patent-filing activity carefully and seek professional advice before getting involved in collaborative projects. Understanding the role of IP in commercialisation is key to success, and any missteps could have potentially costly consequences.