Obtaining patent protection for over-the-air (OTA) technologies can be challenging, since so much of the underlying core technology has existed before in the mobile telephony space. However, there are a few strategies that will increase your chances of success — here’s a breakdown.
What is over-the-air technology?
Over-the-air (OTA) technology is used to remotely deliver software or application updates to mobile telephony devices.
It’s frequently used in the automotive space and looks set to enable technological changes to our vehicles that have never been possible before, including:
- digital personalisation (features that can be enabled or switched off when the vehicle changes hands)
- safety critical updates to advanced driver assistance systems
- delivery of notifications or alerts while driving
- remote takeover of a vehicle.
Can I patent over-the-air technology?
The requirements for a patentable invention, broadly speaking, are that the invention is novel and inventive over what has existed before. It’s difficult to say with 100% certainty whether these requirements have been satisfied in any situation and certainly where the underlying core technology is already relatively well known, as it is with OTA technology.
The key consideration to make is whether your technology solves a technical problem, even if it’s specific to the automotive space, as you may then be able to obtain a patent covering the features that solve the problem.
Dealing with the extra-territorial nature of OTA technology
Since patents are territorial, a UK patent provides protection for an invention only within the borders of the UK. However, even if your invention covers multiple territories, there are strategies that can be adopted to provide optimal protection for your invention.
One commonly adopted strategy with systems of this type is ensuring that the patent protects the different actors of the system separately. For example, a patent may pursue separate protection for the user side (the vehicle), the server side (the entity distributing the OTA updates) and the transmission between the user side and server side. It isn’t always possible to obtain the separate sets of protection, as they all need to satisfy novelty and inventive step requirements, but the extra-territorial nature of an OTA system shouldn’t be an obstacle to obtaining useful patent protection.
Even if it isn’t possible to protect the different actors separately, other remedies, such as relying on indirect infringement, are possible.
Navigating patent infringement with OTA technology
It’s advisable to take a serious look at third party patents to see if you might infringe any prior to the launch of your technology. However, it isn’t the end of the world if you find one that presents a problem. It may be possible to design around a patent and this should be considered as a first port of call. Any practical changes that can be made should be considered.
If the third party patent can’t be navigated, you may have to accept that you’ll infringe that patent, else you may end up infringing many more. Challenging an entire portfolio of third party patents can be time consuming and expensive. More amicable solutions may be preferable, which can include licensing.
Some core technology may only be available under what are known as Fair, Reasonable and Non-Discriminatory (FRAND) licence terms and this may require considerable negotiation with patent owners. The law, as it currently stands, advises that a worldwide licence should be sought for patents that are available to license on FRAND terms.
Next steps
If you’ve developed OTA technology and want to see if it could be patentable, speaking to a patent attorney should be your first port of call. Our teams in both the high tech and automotive space are on hand to provide you with advice based on expertise and experience.
To find out more, get in touch with us.
