Today every business is a digital business. If you don’t believe me, think about the following scenarios:
- A pharmaceutical business uses external consultants along with their own technical know-how and data to develop software that predicts potentially effective pharmaceutically active ingredients.
- An apple orchard develops a system of using drone-based surveillance to check for the optimal time to pick apples.
- A retail business develops a novel approach for visualising and browsing their wares on their website.
- A manufacturing business develop an alternative automated approach for controlling their equipment that leads to reduced manufacturing times or costs.
Day-to-day these businesses would doubtless describe themselves as being a pharma, agricultural, retail and manufacturing business respectively. However, you can see immediately that as they continue to develop, they have become pharma, agricultural, retail and manufacturing businesses with a significant digital element.
And these digital elements will have hidden value, value that will never realise its financial and commercial worth if it remains hidden, ignored and/or unprotected. Instead, this hidden value needs to be captured and leveraged in the same way as all the other IP at the heart of your business.
WHAT DIGITAL IP MIGHT YOU HAVE?
Let’s look at the three primary registrable IP rights, patents, designs, and trade marks in turn.
When it comes to protecting digital inventions, patents are probably the first IP right that comes to mind. However, isn’t it just too difficult to patent software?
Well, it is difficult if not impossible to use patents to protect known algorithms or systems applied to new scenarios, the automation of known processes and data itself.
However, if you can show your invention has a technical effect, as the patent offices like to say. Unfortunately, for most of us, this phrase doesn’t mean much. Here is one of the ways I try to think about the technical effect criterion:
Is the improvement given by your invention:
- Measurable;
- Repeatable;
- Objective.
Once you have identified the part of you invention that meets these three criteria, then you can ask yourself if that remaining part of your invention is obvious or not.
If it seems that even part of your invention meets these requirements, your software could well be patentable.
Even if it isn’t patentable, you may be able to protect your digital innovations using trade secrets.
Trade secrets are all too often the forgotten IP right. While many businesses still think they don’t have any trade secrets, the truth is, if your business has information that is kept secret, has commercial value (now or in the future) and has access to those secrets limited to need-to-know people within your business you have trade secrets.
If your digital IP isn’t patentable, trade secrets can often provide the protection you want because they can protect multiple facets of your technology, such as: how the particular piece of tech works, a formula, a practice, a process, processed data, an algorithm, code or the way you use data.
Designs are also hugely important when looking at how to protect digital innovation.
If we go back to the retail example, their website might be extremely intuitive, user-friendly and unique. That user interface (UI) might give an amazing user experience (UX) and might have taken a lot of effort to develop. This look, feel and functionality can be protected by designs.
Similarly, the app the pharma company has invented to acquire patient feedback on treatment results may well use an easy-to-use colour-gradient slider that is completely different to their competitors’. This could be protected with designs.
Maybe you have developed your own icons and animations. Again, these can be protected by either static or event animated designs and protected in a fraction of the time and at a fraction of the cost of pursuing patent protection. This makes designs a very effective proposition in areas that innovate at a frantic pace.
Traditionally, businesses have protected their company names, logos and even mottos with trade marks. But if you are a business who has developed an app, what are your consumers or clients interacting with every day? I’ll give you a hint, they click on it every time they want to use your app. That’s right, your app icon. This is more compact than your name and might be simpler than your logo but it is that little icon that consumers start to really associate with your brand through repeated interaction.
WHAT ABOUT PROTECTING AI INVENTIONS?
AI currently sits at the centre of digital innovation. However, there are several risks you will need to navigate when it comes to protecting the data behind AI innovations. These include:
- Finding the best way to ensure you can definitely use your AI for what you want to use it for (both now and in the future);
- Proving you actually own both the data and the algorithm being used to drive the AI;
- Making sure the tech and the underlying data in your AI invention are not accessible by your competitors.
It is also important to remember serious questions surrounding the patentability of AI (and machine learning) developed innovations remain unresolved around the world.
Several ‘test case’ applications have been filed around the world listing an AI program called “DABUS” as the sole inventor. The question as to whether an AI can be listed as an inventor have largely been met with a firm “no” by courts. This has led to these applications being rejected. However, appeals are ongoing, so the situation is unlikely to be finally determined for some time yet.
So, what does this mean for protecting IP relating the use of AI/ML, either in the development process of non-AI related inventions, or in inventions relating to improved AI/ML techniques?
While listing an AI as an inventor for a patent application does not appear to be a good idea (at least for the moment), this does not mean that IP relating to AI/ML cannot be protected.
However, care must be taken to ensure that protection can be obtained for the key innovations relating to this subject and we’d suggest you follow these three tips if you want to develop an effective strategy for protecting IP relating to AI/ML innovations:
- Don’t be put off and act quickly!
- Confirm where the invention is
- Balance the potential for using patents vs. trade secrets
The complexity around patenting AI inventions and the developments we are seeing in our every-day practice are probably topics for an entirely separate blog post, so I will wrap this one up here.
This post scratches the surface of how to identify the hidden value in your businesses. Since this is such a complex area, we’d also suggest you speak to us if you are planning to protect any type of digital innovation. Together we will identify the best way to maximise the commercial value of your hidden digital IP.
