Life sciences have been tremendously impacted by artificial intelligence; it could be argued that life sciences companies are slowly transitioning into biotech firms. As the implementation of AI on inventions, intellectual property teams are at crossroads in terms of how to protect their inventions, which range from biopharma to intelligent treatments, and image recognition for diagnosis just to name a few. In the meantime, in-house intellectual property teams can resort to either patents or trade secrets.
The World Intellectual Property Organization defines a patent as “an exclusive right granted for an invention, which is a product or process that provides a new way of doing something, or a technical solution to a problem[1].” On the other hand, the same organization defines a trade secret as “intellectual property rights on confidential information that may be sold or licensed”, and lists a series of requirements to qualify for a trade secret: a) commercial value due to being secret b) known by a limited group of people c) be subject to reasonable steps taken to maintain its secrecy[2]”.
While each of the mentioned legal channels can be used as a means of protection, the current legal framework´s proves to be troublesome in terms of accessing said protection. Eligibility is the first obstacle. AI is typically composed of computer software, which may not have the required inventive technical appliance. This can be further explained by the fact that software may identify the problem, but not contribute towards its solution. An example of this is an algorithm that could identify suitable chemical compounds for drugs but could not create a drug to treat a disease, thus lacking technical character. Aside from general background requirements, it is important to consider some legislations that exclude treatment and diagnosis inventions from patent eligibility, which is El Salvador’s and Honduras’ case. This is particularly relevant as some of the most groundbreaking ways in which AI is impacting life sciences regards diagnosis and treatment.
AI´s patentability faces yet another challenge: time. The patent registration process can last between two to three years in Central America, twenty-two months in the U.S and between three to five years before the European Patent Office. Stanford University AI 2019 Report indicates that current AI is outpacing Moore’s Law, which indicated that computer power is doubled every two years. If this proves to be true, by the time patents are granted said AI systems would already be obsolete, thus rendering patent rights useless. It is critical that along with the advancement of AI in life sciences, patent registration offices implement faster registration processes to adequately guarantee intellectual property rights.
Trade secrets are another legal strategy that could be implemented to protect inventions that use AI. Unlike patent protection, trade secrets don’t require any type of registration process, protection extends for as long as the information is kept secret and there is a vast subject matter that can be protected via trade secret. However, trade secrets do not grant exclusive rights, which means that their inventions could be independently discovered (through honest means) and exploited by third parties. In turn, this makes opting for trade secrets somewhat riskier.
Making the right decision is imperative for life sciences companies and their IP teams, as an oversight could lead to incalculable economic loss. While patents provide full protection against infringement, not all inventions using AI qualify for patentability. As such, trade secrets may be the best option, but life sciences companies should consider if their business models can operate without disclosing that information to customers, particularly, patients. It is important to consider how likely it is said information becomes available to the general public through academia.
All in all, artificial intelligence has disrupted traditional strategies in terms of acquiring intellectual property rights. While both patents and trade secrets are effective strategies of protecting inventions, intellectual property lawyers will play a crucial role in identifying their client business model and the most suitable model for its protection.
[1] https://www.wipo.int/patents/en/
[2] https://www.wipo.int/tradesecrets/en/
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