Businesses and legal practitioners will benefit from considering multiple ways of protecting intellectual property ("IP") related to AI technology. This means understanding that the best method of IP protection may be any one (or combination) of patent, copyright, or trade secret, depending upon the situation. Depending on the business's goals and timelines, one may opt not to protect their IP. The decision of which IP tool to wield is fact-dependent. Here are a few considerations when making this decision.
Enforceability
You must consider the enforceability of your IP rights when deciding which IP rights to ascertain and protect. Suppose an infringer of your IP rights can infringe without you realizing it. In that case, going the route of patent or copyright protection may not be the best because you will not be able to enforce your IP rights.
In the case of a trade secret, while you may attempt to maintain secrecy, you must also consider the ability of your users to reverse engineer your trade secret. For example, in the case of trade secret contained within software, will you allow your users to download the software on their local machines, or will you provide a cloud-hosted API service? The latter is easier to protect.
Record Keeping Requirements
You must document human involvement in the creation process if you want to protect IP through copyright or patent. A computer program cannot receive copyright or patent protection; only a human can. Therefore, documenting the human efforts to create the IP is necessary for protection under these IP protection methods.
You must document efforts to maintain secrecy if you want to protect IP through trade secret. If you don't take measures to keep a technology/idea a secret, then no IP protection is warranted under trade secret doctrine. Therefore, documenting efforts to maintain secrecy, such as limiting who has access to a technology/idea, will help demonstrate the right to trade secret protection.
Design/Building Phase
If you utilize AI tools, it is essential to make sure that these tools do not disclose your ideas and technology to outside parties. In the case of trade secrets, a court may not look favorably upon your use of a public Internet-hosted chatbot that warns its users that it reviews and utilizes user prompts when training its products. This type of practice will limit your ability to show that you took necessary precautions to keep a trade secret indeed a secret. In the case of patents, disclosing your idea before it is patented runs the risk of the idea becoming public knowledge before filing a patent application.
If hiring third parties for assistance in creating the technology you wish to protect, they must engage in the record-keeping strategies outlined above and assign you all the relevant IP rights. Suppose the third parties are using AI tools in their workflow. In that case, you must make sure you are aware of all of these tools and processes so that the third party does not inadvertently disclose a trade secret utilizing unprotected tools running on the public Internet.
There are many considerations when deciding which IP rights to attain and how you must attain and protect them. Which strategy to pursue will depend on your unique situation. The article below offers even more consideration regarding this unique decision.
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