1. What must I do to avoid liability if a drone pilot causes an injury with my product?

Like all vehicles, UAVs have the potential to get into accidents, which cause injuries or property damage. Manufacturers entering the UAV space need to think about ways to reduce the associated risks. Businesses can’t afford to wait until someone gets hurt to start thinking about product liability risks.

Managing product liability risk begins with understanding the range of potential risks created by your product. Once you understand those risks, you should try to make design changes to eliminate the risks or, if that isn’t possible, to guard against them.

Avoiding accidents by making your product safer is the best way to reduce product liability risk. For those risks that can’t be eliminated by design changes, manufacturers should create warnings that inform the user what the risk is, its consequences, and how to avoid it. Because all products create some risks, manufacturers should also look for other ways to reduce risk. These can include:

• obtaining insurance;
• getting indemnities from suppliers;
• limiting liability through agreements with purchasers (e.g., terms of sale) and warranties;
• ensuring there is a good safety program; and
• training personnel on product liability issues.

2. What kind of safety claims can I legally make for my product?

Users need to know how to operate their UAVs safely. The FAA‘s Part 107 does not require manufacturers to provide an operating or maintenance manual, but it is still a good idea to do so. Those manuals are also a convenient place to describe lost-link and other safety procedures and to direct users to http://knowbeforeyoufly.org/ to learn about the laws governing drone use in their area.

3. Do I need a privacy policy and if so, what should I include in my privacy policy?

If you anticipate that your drone will be collecting data that identifies a particular person (e.g., video or photographs) and will likely be linked to an individual’s name or other personally identifiable information (e.g., address, social security number, telephone number, email address), you need a privacy policy.

Your privacy policy should describe (1) the purposes for which you are collecting such data; (2) the kinds of data you collect; (3) information regarding any data retention and de-identification practices you have adopted; (4) examples of the types of entities with whom you may share the data; (5) information on how to submit privacy and security complaints or concerns; and (6) information describing practices in responding to law enforcement requests. 

4. If our UAVs utilize only off-the-shelf parts, what is left to patent?

The key question is whether the combination of parts is patentable. So long as the claimed combination of elements is found to be new—not obvious—and qualifies as patentable subject matter, the invention should be patentable. In the context of UAVs, imagine that a UAV includes several off-the-shelf parts, each of which has been known in the prior art for a long time. If the UAV combines the parts in a non-obvious way, that is not previously disclosed by the prior art, the combination itself may be patentable. Similarly, the software functionality necessary for operating the UAV, or the specific services provided by the UAV, may be patentable even where the combination of parts used to construct the UAV is purchased off-the-shelf. 

As another example, customizations necessary to utilize the off-the-shelf parts, again assuming the customizations are new and not obvious, may also be patentable. Often it may be necessary to search patents and publications to determine whether a specific combination may be more or less likely to be patentable. If you would like to understand whether your products and/or services might qualify for patent protection, speak with an experienced patent attorney. 

5. How did company A get a patent on technology B in light of prior art C?

To be patentable, an invention must be novel (new) and non-obvious in light of the publicly available technology at the time (prior art). One reason company A got the patent may be because the U.S. Patent and Trademark Office wasn’t aware of the closest prior art. Another reason deals with obviousness—the test for obviousness is somewhat subjective, and it may be that the patent examiner missed a good reason to find the invention merely obvious. Still another reason is that the law changes over time—what was patentable years ago may not be viewed as patentable now.

If you have concerns about company A’s patent, you may have several options available. You may want a patent attorney to review the patent and your products. Depending on the results, your attorney may be able to give you an opinion that you don’t infringe the patent, or that the patent is invalid. That opinion may save you from extra damages if company A sues you. Or, you may want to invalidate the patent, either in court or in a proceeding at the Patent Office, which may be cheaper and faster. 

We hope you enjoyed this Q&A session. As one of the first firms to form an interdisciplinary team of attorneys to provide strategic guidance for companies designing, building and using unmanned vehicles, Perkins Coie stands committed with the UVS community in fostering innovation and continuing to establish technical, safety, application and policy standards. 

Our work on behalf of UVS clients ranges from advising startup manufacturers of unmanned vehicles to guiding major corporations expanding into the UVS industry. As governmental and commercial applications of UVS continue their revolutionary trajectory, we are at the forefront of the industry, working with clients as they move into more consumer-driven models of devices.