AI in Healthcare: choosing between trade secret and patent protection
In recent years, the term Artificial Intelligence (AI) has become commonly used, sparking both excitement and fear. Often portrayed as a potential villain in the narrative of privacy invasion. While these concerns persist, the potential for groundbreaking advancements in healthcare through AI cannot be overlooked. This article addresses the decision-making process of whether to protect AI innovations in healthcare through trade secrets or patents.
The AI healthcare landscape
The increasing demand for healthcare services has necessitated a shift towards proactive, long-term care management, with AI emerging as a potential solution. The AI healthcare market's valuation soared to $11 billion in 2021 and is projected to reach $187 billion by 2030, highlighting the significance of protection thereof.
Trade secret protection
One key avenue for protection of AI based inventions is by means of trade secrets. This allows companies to shield their confidential AI training methods and data from public disclosure. Trade secret protection is often better suited for safeguarding the source code, training dataset, and internal database structure of an AI system.
Unlike patents, trade secret protection is perpetual and lasts as long as the information remains confidential. However, once the information is disclosed or independently discovered, trade secret protection is forfeited.
Conditions for Trade Secret Protection
For information to qualify as a trade secret, it must meet three conditions:
- The information is not generally known or easily accessible to industry peers.
- The information holds commercial value due to its confidential nature.
- Measures are in place to ensure the information remains confidential.
Patent protection
In contrast to trade secrets, patent protection may be more fitting for aspects like the user interface and the intricate algorithms underlying the AI healthcare system. AI healthcare can be patented to protect the software, technology or the physical apparatus.
In order to be eligible for patent protection, AI healthcare must meet certain requirements, such as novelty, inventiveness, and susceptible to industrial methods. Furthermore, the claimed invention cannot merely recite abstract features. The invention must be sufficiently specifically described in the conclusions and specification so that the invention can be carried out based on it. It must also solve a technical problem.
Patenting options for AI healthcare inventions
AI healthcare inventions can be patent in three different manners, depending on the invention itself. The options are as follows:
Process Patent: Protects the method of using AI to accomplish specific tasks.System Patent: Protects the hardware and software components constituting the AI system.Device Patent: Protects the overall apparatus or machine, including AI software.
Conclusion
Choosing the right intellectual property (IP) strategy for AI in healthcare hinges on understanding the technology's nature, use, and control. Factors such as public-facing visibility, susceptibility to reverse engineering, and data sharing requirements influence the decision between trade secret and patent protection. Non-public facing technologies may be aptly protected as trade secrets. However, public-facing technologies may find better protection under the patent regime, especially when licensing or Software as a Service (SAAS) offerings are involved.
