Secrecy inevitable—offers advantages that outweigh benefits of patents

Second, trade secrecy, often viewed as the primary alternative to patent protection, provides AI developers with several key advantages in comparison to patent protection.37 For instance, keeping an AI system’s technical details under wraps is often a key competitive advantage because doing so can provide significant lead-time advantages.38 Trade secrecy allows AI developers to keep their systems secret, whereas patenting the same invention requires disclosure of key technical details as part of the patenting process.39 Furthermore, even in cases where parties may prefer patent protection,40 the relative ineffectiveness of AI patent protection means that more AI innovators are likely to choose trade secrecy over patent protection for their AI innovations. Thus, trade secrecy is increasingly displacing patent protection as the preferred form of legal protection in a growing number of AI contexts.41