By on May 14, 2010

Hunting prototypes for spyshots can be a frustrating and (if done in Finland) frosty affair. Carmakers are taking extreme measures to ward off paparazzi. Carmakers camouflage their prototypes (see video.) This doesn’t faze bloggers. Bloggers found a way to catch future cars in the comfort of their own home or office: From a ragtop Panamera in egmcartech to a similarly topless Mercedes AMG SLS in Topspeed, no future car is safe from bloggers anymore, even before the first prototype is built.  Understandably, the Chinese are highly interested in the technique. You can learn it in a few minutes. What is the secret?

Patented Panamera ragtop. Picture courtesy egmcartech.com

Patent applications.  Bloggers and industrial spies mine patent applications for future car designs. Contrary to popular belief and public whining, there is no automatic copyright on car designs. As long as someone else doesn’t blatantly copy the design 1:1, it’s fair game. Design patents offer some protection.

However, here is the hitch: The designs must be filed. In public. Accompanied by drawings. How could one protect a design, without a drawing enclosed with the patent application? Unfair? As Wikipedia explains it in layperson’s terms: With a patent, “an inventor is granted a monopoly for a given period of time in exchange for the inventor disclosing to the public how to make or practice his or her invention.”

There is no camouflaging in these drawings. Au contraire: The novel aspects of the design must be clearly discernible. Otherwise: No patent.

In China, the matter gets even trickier. Very much contrary to popular belief, there is a fully functioning patent system in China, patents are being enforced. If they have been filed. Filed in China, not elsewhere. A lot of whining about “intellectual property robbery” comes from a lack of understanding of the Chinese patent system.

Patented AMG SLS ragtop. Picture courtesy topspeed.com

Highly misunderstood: China, unlike the United States and most other countries, follows the first-to-file doctrine. If a patent application is filed for the same innovation, the first to file will get the patent. You snooze, you lose.

It gets even dicier: In the United States, you can “publicly disclose” (use, talk about, advertise) an innovation, and then you have a full year to file your patent application at your leisure. In China, public disclosure before filing in China pretty much assures that you will not get the patent. You must file the patent before disclosure.

Up until quite recently, it was relatively easy for someone else to file in China for a patent that had already been granted to someone in another jurisdiction, say in the United States. If you filed for a patent in the U.S., but forgot to file in China, someone else could easily get a utility, or design patent in China. The patent holder could then use this patent to prevent others, including the original patent holder, from producing or selling the product in China. Howling ensued each time that happened, but it‘s the law. Well, it was.

Patented Traverse. Picture courtesy TheTycho.com

Effective on October 1, 2009, this loophole was closed. Under the amended patent law, an invention loses its novelty in China if it has been before publicly disclosed in the world. If it’s not novel, it can’t be patented. Neither by someone else, nor by yourself. Patent lawyers advise to file a Chinese patent application before there is any disclosure of the invention anywhere else. Now isn’t that counter-intuitive? You invent something in the U.S.A., and the first patent you apply for is in China? If you don’t want to get ripped off, yes. As a side effect, China receives prior knowledge of anything you think the Chinese shouldn’t copy, but them’s the rules.

Companies that ignore or misunderstand these differences (the above is a very condensed version, more for a hefty fee,) complain loudly about IP theft and routinely lose in Chinese courts. Companies that understand the system successfully file patents in China and usually win the case. Maybe. Anyway, they have a fighting chance.

A design patent in China is much like a design patent in the United States, or elsewhere. It protects “any new design of the shape, pattern, color, or their combination, of a product, which creates an aesthetic feeling and is fit for industrial application.” Just like elsewhere, the realistic protection from a Chinese design patent is limited. There is a huge grey zone between patent infringement and inspiration. A design patent in China provides protection for ten years. And at the very least, it prevents third parties from copying body parts of the car for use in the after sale market. There are voices that want to kill design protection for repair parts. The voices are not from China. They are from Brussels. Horrors! The House of Representatives blatantly copied the EU ideas! Someone call a lawyer.

Back to the bloggers: A side effect of the above is that many advanced designs appear first in patent applications. Such as the drawings for the new Buick Excelle, which a few days ago were confirmed by my new Beijing buddy TheTycho who found a new Buick Excelle sloppily parked on the proverbial grassy knoll.

He used the same technique to root out the design of the new Chevy Traverse. The heavy lifting was done by the Chinese site Bitauto, which must have a permanent correspondent at China’s State Intellectual Property Office (“SIPO”.) The new Traverse should be on sale in China by the end of the year. Good news for the UAW local in Lansing, Michigan: The Traverse will be exported to China. And because it’s a patented design, it can’t be easily ripped off. At least in theory.

However, everybody can be a spy shot paparazzo these days. Just sift through the files.

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17 Comments on “Now YOU Can Be A Spy Shot Paparazzo (No Prior Knowledge Required)...”


  • avatar
    Rod Panhard

    If they’d design the test mules to be REALLY attractive, like a Cisitalia, then we’d never know who they came from and all that top secret cladding could go back to the recycling bins where it came from.

  • avatar
    FleetofWheel

    Why can’t the car companies file lots of patents for designs that don’t intend to actually use?

    How hard is it for them to have their sketch artist whip up a dozen possible new shapes only one of which they intend to produce.

  • avatar
    Robert.Walter

    He says he doesn’t want the public to see this as ‘a box running down the road’ instead of a GM product … isn’t that both counter-productive? I understand that one might not want the public to know the model, but isn’t it a kind of positve advertising for the corporation when people see that GM has new models (yet unknown) under development?

    Why not clad the vehicle in holographic colour and shape shifting film so that it would just not be possible to get a clear snap of the contours of the vehicle?

    Even the contours of the window surrounds are done poorly … instead of the same pattern extending down from the roof across the door’s window frame and even into the glass, he doesn’t cover the first inch or two of glass and has two different patterns on the roof and window frame…

    To hide the contours of the vehicle they could just put a piece of plastic or cardboard under the film …

    All this textile covering with velcro and seam taping is really an expensive waste of time … a vehicle designated for development drives is highly-unlikely to ever see another use … it won’t go on the show circuit, be used for press photos, be sold, etc. After development, they head to the crash barrier wall or crusher…

    Why bother with all the difficult to construct but easy to remove camoflague if the same end can be accomplished by using relatively easy to remove self-adhesive film (with one big shape/colour shifting pattern?

    • 0 avatar
      Stingray

      When Toyota was testing the (then new, now current) Corolla here, they camouflaged them like a Zebra. I saw them for about 3 days in the highway. Having seen the car in the interwebz about 4 months before, I already knew what was under that vinyl when I saw the headlamps.

      When Chrysler was testing the Caliber, I saw them naked, only with the special manufacturer plates.

      And about 10 years ago when GM launched the Astra, they covered the emblems/logos or shaved the names of the cars.

      I think it’s useful, the patent drawings posted don’t show the full details of the design, which are in the prototype… and it’s not a good idea your competition knows what you’re doing… in early stages. When you’re near launch, I bet the car could be a bit more “naked” so people could appreciate its shape. But then, they would know you’re are going to launch a car and the old model value would go to the toilet.

      As everything in life, I think it’s a compromise

  • avatar
    Robert Schwartz

    How can we get BMW to patent their designs?

  • avatar
    50merc

    That’s not a “box running down the road,” it’s an elongated jellybean or a half-used bar of soap, just like hundreds of other cars. All that Camouflage Guy needs to cover to make people wonder who made it are the badges.

  • avatar
    SherbornSean

    Robert,
    +1
    brilliant!

  • avatar
    xyzzy

    The contents of patent applications aren’t disclosed publicly until the patent is granted, right? I know it was that way in the US when I worked on patents over 10 years ago. And some patents take years of litigation to get, so often the patent is granted after the product is on the market (that’s why you sometimes seen patent pending” on products)

    so given that, how often are design drawings really publicly available through the patent office well in advance of the actual car?

  • avatar
    abcb

    Actually almost every country follows the First to file rule vs. US’s first to invent rule. Same with the no prior disclosure in foreign country rule.


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