Do you know how to protect your software-based innovation against your competitors? Does the cost of patents put you off? Do you worry that trade secrets may not be enough? Can you use both? Do you know the difference in terms of the protection they offer? Read on for our tips for protecting your software-based innovation, and a brief discussion of patents vs trade secrets…
Protect your software-based Innovation: Tips for software developers
Which is better for software-based innovation?
Patents or trade secrets?
There is no right answer to this in general terms. As with all types of innovation, both patents and trade secrets (as well as other IP rights) should form part of a balanced IP strategy.
Protecting something as a trade secret does not involve the cost outlay of patents and can, in theory, last forever (or for as long as it is kept a secret). But it is risky: you will need very careful processes and polices in place to preserve the trade secret. Even then, it can leak out, and once it’s gone, it’s gone forever.
On the other hand, whilst patents only last for a maximum of 20 years and have a cost implication from the outset, of course, they usually offer stronger and broader protection than trade secrets and are enforceable against infringers irrespective of whether or not there is any unfair, non-competitive or illegal intent or knowledge of the IP right. They can also act as a deterrent to competitors whilst they are pending applications. That said, patents require full disclosure of the innovation claimed. So the question is…
Can you have both?
It seems that you probably cannot, ‘have your cake and eat it’ when it comes to patents and trade secrets for protecting software-based innovation in Europe: you must opt either for a patent and describe the innovation fully in return, or you use trade secrets to protect key aspects of the innovation and trust to your internal IP management and trade secrets policies to preserve them. On the other hand, in the USA, it seems that, in relation to AI-based innovation, training data might not need to be disclosed in a patent specification, so you can also consider using different strategies in different jurisdictions, which means that, in theory at least, you could secure patent protection for the innovation and also use trade secrets to protect the training data set.
There is scope, within the various IP frameworks around the world, for the use of creative IP strategies that make the most of patent and trade secrets (and other IP) provisions, which can allow you to optimise the return on your investment as the world continues to race toward technological leadership, without needing to break the bank. Make sure your IP strategy has the scope to include all of them.
Need Help?
We hope you have found this summary useful. If you need help to work out where your most valuable IP is, and how to protect it, or if you have any other IP questions, we are happy to offer a confidential initial consultation, which is free of charge and obligation. Please book your free initial consultation by clicking the link below:
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