At the 2019 Consumer Electronics Show in Las Vegas, Toyota made two revelations. First, it revealed “Guardian”, an automated driving safety system that it has developed in parallel to its autonomous driving system, “Chauffeur”. Second, it revealed a desire to share this technology with other auto manufacturers.
It is not every day that a manufacturer announces a desire to share its technology with its competitors. Why does Toyota want to do this? Its answer was clear: to try and save as many lives as possible. How does Toyota intend to do this? That seemingly remains to be decided. In making that decision, there are a number of potential legal issues that may be relevant. In this bulletin, we consider some of these issues as well as the question of whether this technology may present an alternative to fully autonomous vehicles.
What is the Guardian system?
Guardian is a passive safety system that is designed to assist in controlling vehicles which are otherwise controlled by a human driver at all times. It is not a fully autonomous system that seeks to replace the human driver. Rather, it is designed to augment human control of a vehicle, including by intervening in dangerous scenarios.
How the Guardian system works
Toyota has billed Guardian as the application of its studies of ‘fly-by-wire’ control systems in fighter jets. But what does this mean?
Traditionally, fly-by-wire meant that the signals created by a pilot’s interaction with the flight controls were converted to electronic signals which passed to the aircraft’s flight control computers, thereby replacing manual flight controls. However, in advanced systems this has come to mean that, rather than responding directly to the pilot’s inputs, the flight control computer seeks to identify the pilot’s intended objective and then triggers outputs aimed to achieve that (subject to remaining within a set safety performance envelope).
With Guardian, Toyota is trying to apply this system to cars. However, unlike in a fighter jet, the safety envelope is defined not only by the parameters and performance of the vehicle, but also by the vehicle’s perception and prediction of everything in its immediate environment, including pedestrians and other vehicles.
An alternative to fully autonomous vehicles?
Toyota does not see Guardian as merely a stepping stone technology while fully autonomous driving systems are developed. Rather, it regards it as an important alternative; a system that allows people to continue to drive but with the benefit of as-needed technological assistance.
This raises an interesting question regarding the potential for long term mixed fleets on public roads. A number of commentators have suggested that the proliferation of autonomous vehicles will sound the death knell for conventional vehicles; conventional vehicles will either (a) become prohibitively expensive to insure, or (b) be banned on safety grounds. As a result, while there will likely be a period of mixed fleets on public roads, conventional vehicles will eventually die out and autonomous vehicles will become ubiquitous.
By introducing an automated safety system that augments the human driver, could Guardian provide the best of both worlds: allowing humans to continue to drive with a technological safety net to prevent accidents? Time will tell. However, if the Guardian system is able to demonstrate safety benefits comparable to that expected of fully autonomous vehicles, it may be possible to imagine a scenario where there is a long term mixed fleet of fully autonomous vehicles (for those that do not wish to drive) and “augmented” vehicles (for those that do).
Potential anti-trust issues
Despite the potential benefits for drivers, Guardian is not being developed with only drivers in mind. Toyota’s aim is that Guardian will be capable of operating not only with a human driver, but also with any autonomous driving system, irrespective of the manufacturer.
To realize this aim, it will be crucial for Toyota to ensure that its system is interoperable with other autonomous vehicle technologies. In order to achieve this, a level of standardization may be required, which can potentially raise questions of competition law.
Generally, standardization is considered to have positive economic effects and governments have been reluctant to restrict it. However, where standardization risks creating market power (effectively the ability to profitably maintain prices above or output below competitive levels) this can be more problematic. In recognition of this, the European Commission specified criteria which, if met, allow a standardization agreement to benefit from safe-harbor against being deemed anti-competitive under Article 101 of the Treaty for the Functioning of the European Union. These are as follows:
- participation in the standard-setting is unrestricted;
- the procedure for adopting the standard is transparent;
- there is no obligation to comply with the standard; and
- companies have effective access to the standard on fair, reasonable and non-discriminatory (“FRAND“) terms.
While failure to meet these criteria will not automatically render a standardization agreement anti-competitive, care will need to be taken by manufacturers to ensure any standardization in respect of the Guardian system does not cross-over into being anti-competitive.
Potential IP issues
Similarly, if a standard is to arise, Toyota will need to consider whether it is comfortable with its patented technology (behind the Guardian system) being incorporated into that industry standard. If incorporated, this would render Toyota’s patents standard essential patents, which would in turn, require that competitors be given access (i.e. be granted a licence) of the patented technology on FRAND terms. Although, what this means will depend upon the circumstances and, to some degree, Toyota’s preference (as a range of different terms may satisfy the FRAND requirements). There have been some significant disputes between competitors in other industries over licensing of standard essential patents for use in 3G and 4G telecom standards.
Toyota will also need to consider carefully how it wishes to share its technology more generally. A variety of approaches could be adopted, ranging from selective restrictive licensing to a full open-source model.
The approach taken may ultimately be determined by the existing legal relationships that Toyota has with interested third parties. For instance, if the Guardian system relies on technology which Toyota has licensed in part from third parties, the terms of those third party licenses may constrain the manner in which Toyota can share the Guardian system.
Potential regulatory issues
Finally it will be interesting to see what regulatory response there is to the emergence of ‘augmented driving’ technology like the Guardian system, and the degree of driving autonomy that new regulations permit.
From a safety perspective, there would appear to be plenty of scope for disagreement on the degree of autonomy that should be permitted, in particular regarding how the safety envelope ought to be defined. Would this, for instance, prohibit drivers from exceeding the speed limit or from driving when they are tired? If so, should there be elements of the envelope which can be overruled by drivers? The latter question has already led to different answers and approaches to fly-by-wire technology in the aviation industry and there is no reason to believe this will be any less contentious in the automotive industry.