In a recent blog post, we touched on “outside-the-box” thinking as one way to develop intellectual property portfolios in upcoming technologies. More specifically, we discussed a recent patent application by Google including technology that reduces secondary impact in a situation where an autonomous vehicle strikes a pedestrian. To reduce secondary impact, an eggshell-like coating over an adhesive layer was proposed, such that the pedestrian may become stuck to the adhesive layer in the event of a collision and the secondary impact may be avoided.
While this patent application highlights outside-the-box thinking, it also serves to highlight the intersection of technology development and product liability, which is the subject of this post. Specifically, what you say in a patent application may come back to haunt you in product liability cases.
Take the Google patent application discussed above (US 9340178 B1). Via the language in the application, it is made clear that autonomous vehicles may strike pedestrians. To reduce the consequences of such an action, the adhesive layer was proposed. However, we also noted in our previous post that the concept may or may not ever be implemented. Herein lies a potential problem. Consider a situation in the future where a Google autonomous vehicle strikes a pedestrian, and the pedestrian is hurt via secondary impact in a situation where the vehicle either did not include the adhesive layer, or included the adhesive layer only on a portion of the vehicle (e.g. the front of the vehicle), where that portion did not strike the pedestrian. In such examples, if the injured claims that Google was involved in the distribution of an unsafe product, Google may have to defend not using its allegedly great new technology.
Thus, such an example serves as an important reminder that when drafting patent applications, admissions of potential safety issues should be carefully considered prior to filing. One option might be to either avoid such language altogether, or phrase language in such a way as to reduce potential unforeseen product liability issues.