Protect your AI-based Innovation: Patents vs Trade Secrets

Protect your AI-based innovation: pros and cons of patents vs trade secrets
Protect your AI-based Innovation

Do you know how to protect your AI-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 AI-based innovation…

Protect your AI-based Innovation: Tips for AI Innovators

Which is better for AI-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 AI-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 (for example, training data) and trust to your internal IP management and trade secrets policies to preserve them.  On the other hand, in the USA, it seems that training data might not need to be disclosed in a patent specification, so you can also consider using different strategies in different jurisdictions.

There is scope, within the various IP frameworksaround 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.

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