Is Standardization for Autonomous Cars Around the Corner?: Antitrust and IP Considerations

By Shervin Pishevar

Given the recent focus on self-driving cars, it is only a matter of time before the industry begins to consider setting technical interoperability standards for such cars.  The automated vehicle industry will need a mechanism to allow these cars to drive side-by-side with both autonomous and human-operated cars, communicate with each other, and avoid obstacles.  One solution is to develop open technical interoperability standards, and establish a patent pool to facilitate the licensing of essential patents and avoid the expensive and time consuming litigation that has consumed the smartphone industry.

Standard-setting and patent pools can have procompetitive purposes, particularly when the goal is technical interoperability, which benefits consumers.  Technical interoperability standards are needed for autonomous cars, but the industry must carefully implement the standard-setting process and any related patent pooling arrangements to satisfy well-established antitrust principles.  Key will be to identify the aspects of autonomous driving technology that benefit from standardization, create a standard-setting organization to oversee the development of the relevant standards, and structure a patent pooling cross-licensing arrangement that facilitates widespread implementation of the technology.  To that end, an option to request advance Justice Department review of these arrangements pursuant to 28 CFR 50.6 should be considered, as the Justice De…

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