More attractive to innovators for many reasons

Trade secret protection offers several potential benefits for AI innovations:

AI technologies that are difficult to reverse engineer are particularly well-suited for trade secret protection. As discussed above, one major reason for pursuing patent protection is to prevent others from developing and marketing products using the protected technology. This is particularly the case where the technology could be readily reverse engineered by a competitor such that, absent patent protection, the innovation would be particularly vulnerable to copying. The drive to pursue patent protection is lessened where the underlying innovation is difficult to reverse engineer. By keeping such an AI technology as a trade secret, the inventor would be preventing others from having access to and potentially using the technology.

Such innovations may include the method and know-how for extracting useful information from raw data sets and subsequently generating models using the extracted information, as well as methods and know-how for training and utilizing models.

AI technologies where infringement would be difficult to detect can be candidates for trade secret protection. It can be difficult to assert an AI patent where infringement is difficult to detect and prove. For such technologies, trade secret protection can be considered; however, similar difficulties can arise with regard to identifying misappropriation of trade secrets by competitors (as opposed to by former employees who had access to such trade secrets).

Trade secret protection lasts indefinitely-so long as the information is maintained as a trade secret. Accordingly, licenses can continue indefinitely without expiration dates.

Trade secret protection may be available for IP that is ineligible for patent protection. Raw data, extracted features, or training sets, used to inform machine learning models and otherwise develop AI algorithms, may not be eligible for patent protection; but they may be protectable as trade secrets. Likewise, trade secret law is in a unique position to protect business plans for how a company intends to use AI-generated information and models for its own competitive advantage. Trade secret law can even protect know-how regarding what does and does not work.

Trade secret protection has a low barrier to entry. Trade secret protection is effective immediately, with no need to procure protection via the USPTO (and meeting the requirements of showing novelty or non-obviousness as required to obtain a patent). In fact, trade secrets do not have to be registered at all, so there are no hefty preparation or filing fees.