As companies develop innovative artificial intelligence (“AI”) technologies, they face difficult questions on how to protect them. U.S. courts have historically been skeptical of patent protection for software and computer-implemented technologies. That skepticism can extend to AI advances embodied in software and functional algorithms (which is what most AI innovations consist of) rather than specific hardware.
Recent decisions suggest there may be opportunities to protect AI software and algorithms through patents—including for generative technologies. But doing so can be tricky. AI companies must watch for pitfalls that have undermined attempts to patent similar technology. Trade secret protection may offer a better blend of risks and rewards than patents for some AI innovations—particularly where they face uncertain prospects for patent eligibility.
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