Learn how to protect your artificial intelligence software through patents, trademarks, designs, copyrights, and strategic contracts. We’ve reached out to two intellectual property (IP) experts, Olivier Nicolle and Olivier Laidebeur, who will provide further insights during an upcoming workshop.
What can and cannot be protected by intellectual property in the realm of artificial intelligence, including software?
Ideas cannot be protected, but as soon as an idea is incorporated into software (MVP, POC, etc.), we can protect it. Through patent rights, we can protect the functionality of AI-based software (provided certain criteria are met). Copyright on the source code is also an interesting tool, but the functions are not protected; only the code itself, i.e., the set of instructions. This is why we need to combine various rights (including design rights on the appearance of the screens) to achieve efficient protection.
How can AI be legally safeguarded as an intellectual property asset, and what steps are involved?
Depending on the rights, the steps involved in protecting AI software differ. For copyright protection, we need to have contracts in place with various partners (employees, freelancers, external software developers, etc.), as otherwise, copyrights remain with said partners or employees, and this might create significant trouble when conducting due diligence on exit or when litigation arises.
For patents, designs, and trademarks, we need to file an application with the competent IP administrations: you have no rights whatsoever when using your AI, and we need to file an application before the AI software is disclosed or even pitched to avoid the cancellation of a patent due to its disclosure by the owner itself.
Once it has been filed, you can disclose as much as you want and put the rights on the balance sheet of the company. You can also use it in your marketing campaigns and vis-à-vis your investors (or potential investors) to show that you have a unique right. IP rights are monopolies, meaning you can block your competitors and prevent them from copying or developing a similar AI (if accurately protected).
What are the legal implications and challenges in protecting AI as intellectual property, given the evolving nature of the field?
The main challenge is to protect valid rights. This is why our experts first conduct prior rights searches to check if you are not infringing existing patents or trademarks, for example. The second challenge is to assign a financial value to each right: as technology is rapidly evolving, the lifespan of your rights might be shorter than the full official duration of your rights.
However, we carefully monitor the rights to ensure that we stop incurring costs when the technology is no longer used. The third challenge is to monitor your competitors and intervene against counterfeit applications or uses. Here again, our experts are accustomed to selecting the best options, including the most appropriate way (administrative opposition, court action), and country (Luxembourg is an option, but we often litigate in other jurisdictions if there is interest).”