Patent lawsuit puts the brakes on a pedestrian safety option

By Robbie Webber

A recent memo from FHWA has complicated the pedestrian safety campaigns of jurisdictions across the country. According to the memo, FHWA is rescinding interim approval for use of Rectangular Rapid Flashing Beacons, known as RRFBs. The cause of the rescission is a patent lawsuit against the manufacturers of the RRFBs. The memo states:

Federal regulation, through the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) prohibits the use of patented devices under an [Interim Approval] or official experimentation with patented devices…. The FHWA has learned of the existence of four issued U.S. patents, and at least one pending patent application, covering aspects of the Rectangular Rapid Flashing Beacons… originally approved [in 2008.]

RRFBs are used to draw attention to midblock crossing signs such as for school-, pedestrian- or path-crossings. They have been very popular because they are less expensive than alternatives and do not require extensive engineering. With a solar panel, they can be operated where electrical boxes are not currently present. They can either be manually operated or passively detect pedestrians, and the irregular flashing pattern is similar to emergency vehicle lights. The initial 2009 guidance from FHWA noted that:

An official FHWA-sponsored experimental implementation and evaluation conducted in St. Petersburg, Florida, found that RRFBs at pedestrian crosswalks are dramatically more effective at increasing driver yielding rates to pedestrians than traditional overhead beacons.

The Institute of Transportation Engineers has called on FHWA to be flexible with communities that have either already planned for RRFBs or have purchased but not installed them. They state:

…we believe that there are hundreds if not thousands of these devices that are not yet installed but part of active construction projects, included in projects that are well along in the design process, and/or stored in public facilities awaiting installation at a future date…public agencies are being advised that many of these devices cannot or should not be installed without risk of federal sanctions or tort liability, and that other, less effective and often more costly solutions need to be substituted, with all associated costs borne by state and local public agencies…

Consultants on bicycle and pedestrian safety such as Toole Design Group and Alta Planning + Design have issued memos to their clients, and communities such as Ann Arbor are scrambling to decide how to implement planned safety treatments. Because of the confusion and the desire of many communities to use these safety devices, FHWA has published a Q&A page to answer questions and issued a guide to alternative treatments. Besides “What do we do now?”, one question asked by community leaders and safety advocates—“Why are patented devices not allowed?”—is answered on the Q&A page. In full, here is the answer:

Patented traffic control devices run counter to the principle of uniformity. If competing patented devices were developed to serve the same purpose, but unique designs were used, the road user’s expectancy would be violated due to the inconsistent appearance and messages. Traffic control devices are designed for instant recognition and response by the road user. Without this consistency, there would be longer response and reaction times, potentially compromising the safety of road users.

The allowance of proprietary traffic control devices in the MUTCD also violates the general prohibition against the Federal government endorsing or appearing to endorse a product, company, or individual.

Robbie Webber is a Senior Associate at SSTI.