Intellectual Property

Patent Offroading With Luxury SUV Brands

This latest round of patent enforcement in the automotive industry is nothing more than an off-road detour for these two luxury titans.

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(Photo by ROBERTO SCHMIDT/AFP/Getty Images)

Since the dawn of the automobile, there has been heavy patent activity in the automotive industry. Lately, the success of non-traditional carmakers like Tesla has pushed even the most staid industry stalwarts into a renewed focus on innovation. Whether it be on improving engines for electric cars, to refining the driver and passenger experience by incorporating more technology into vehicles, to improved safety features, there has been a bit of a renaissance when it comes to patent activity in the auto sector.

At the same time, it did seem that there was a bit of detente in place, whereby automotive companies would refrain from publicly suing each other on their patents. That is not the say that there was no licensing activity, or that brand consolidation in the industry did not play a role in reducing competitor patent lawsuits. Another factor that fueled the seeming reduction in competitor cases was undoubtedly the fact that automotive companies were frequent targets for non-practicing entities in the last decade, often for various aspects of their websites, or other tangential technologies. Now that such activity has abated a bit, an appetite for taking on competitors seems to have returned. Regardless, at least one recent filing suggests that the tide may be turning, as automotive companies aim to recapture the mantle of most innovative from the new upstarts that have captured the public’s imagination.

The case that struck my eye was recently filed (on June 14) in the famous rocket docket, the Eastern District of Virginia. Those who have litigated in that forum know that the judges there take to heart the maxim “justice delayed is justice denied,” and put extreme pressure on both sides of a case to prepare for trial — often with trial dates set for just a year out from the date the complaint was filed. Considering the number of legal and factual issues presented by even uncomplicated patent cases, this emphasis on getting to trial quickly can make litigating in the Eastern District of Virginia a challenge. For example, the short timeframes to trial make a “file IPRs and then move for a stay” approach — typically employed by defendants in other jurisdictions — nigh impossible in the Eastern District of Virginia. Likewise, trying to slow boat discovery through motion practice and delay tactics is also a non-starter. On the flip side, plaintiffs best be prepared with strong infringement proof and a clear claim construction position, as there is little time or tolerance for a shifting theories approach to litigation.

So who’s fighting and about what? Filing the case was Jaguar Land Rover, the famous maker of the Range Rover line of uber-luxurious SUVs. In the complaint, Jaguar asserts that Bentley, the well-known manufacturer of super-luxurious coupes and grand sedans infringes on a number of claims from a recently-reissued Jaguar patent on adaptive terrain response selection systems. In particular, Jaguar alleges that Bentley included an infringing system in its recently released Bentayga, perhaps the most expensive luxury SUV available today — and Bentley’s ballyhooed first entry into the profitable luxury SUV market. The allegedly infringing system, available as an option on Bentayga models, allows the driver to customize the suspension and driving dynamics to different terrain types as they are encountered. Interestingly, it appears that the existence of a “sand” mode, for those Bentayga owners interested in traversing the Sahara in style perhaps, is what forms the basis for Jaguar’s infringement claim for at least one of the asserted patent claims. In short, we are not talking about fundamental technology here.

To be clear, we live in an age where less-rarified SUVs, like say a Ford Escape, are available with some form of selectable drive modes. While the systems employed by Range Rover and Bentley may be more sophisticated, by allowing for variability of more of the SUV’s subsystems, it is clear that any patents in this area are more about incremental improvements to existing technology than blazing a new innovative path forward for luxury SUVs.

So why would Jaguar file this case — especially since the damages are likely very limited due to the narrowness of the claims and the ease of designing-around, coupled with the likely very small number of Bentayga’s actually sold with the allegedly infringing option? As with many a competitor patent case, the true aims of the case may be more about the battle of public opinion than the promise of financial reward for the alleged infringement.

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Keep in mind that Jaguar wants to preserve the image of Range Rover as the leading luxury SUV brand. Knowing that its customers prize innovative features unavailable elsewhere — even if those same customers never actually intend to use those features — Jaguar rightfully hopes that customers will continue to associate its luxury SUV offerings with innovation and exclusivity. The presence of competing technologies, therefore, is something that Jaguar’s patents can help contain, through selective enforcement and a carefully-managed narrative painting Jaguar’s SUVs as having technology that other competitors can’t help but copy. At the same time, Jaguar is also fighting the appeal of new-age luxury SUVs like the Tesla Model X, so being able to say that “hey, we have patents too” is a bulwark against claims that old-line manufacturers like Jaguar offer only dated technology and vehicles. Against this backdrop, a relatively low-stakes assertion against Bentley makes sense for a company like Jaguar.

Ultimately, whether or not either Bentley or Jaguar wins this particular patent battle is immaterial. Jaguar will have achieved at least some of its goals by just filing the case, while Bentley is at little risk of an injunction or serious financial damage outside of legal fees in defense — and perhaps some tangential damage to the Bentayga’s halo as the it SUV of the moment. At the same time, it is unlikely that a single Bentayga customer will choose a Range Rover (or a Mercedes G-Class for that matter) just because of some allegations of patent infringement around an optional feature. While interesting, these considerations suggest that this latest round of patent enforcement in the automotive industry is nothing more than an off-road detour for these two luxury titans.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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