How A.I. and Big Data Will (And Should) Change Your IP StrategyFebruary 15, 2023

The last two decades have seen an increasing recognition of the value of patent rights. In many industries, ownership of a substantial number of patents is a clear sign of a company’s innovation capacity and leadership in the industry. Despite the growing interest in patent protection, the emergence of artificial intelligence (AI), machine learning, and big data has raised important questions about the future of intellectual property rights and how companies approach innovation.

It was recently announced that IBM has lost its top position in the patent-filing rankings. IBM had been leading this ranking for the past 20 years, but now it has fallen behind other technology giants, such as Samsung and Canon. According to IBM, the decreasing emphasis on patents was intentional. IBM SVP Darío Gil wrote in a Fortune op-ed that “in 2020 [IBM] decided that [it] would no longer pursue the goal of numeric patent leadership.” Instead, IBM has directed resources towards “achieving high-quality, high-impact advancements in the specific areas of hybrid cloud, data, and A.I., automation, security, semiconductors, and quantum computing.” IBM’s approach to innovation protection will involve a balancing of “trade secrets and patents alongside a style of R&D called ‘open innovation,’ in which teams from various organizations and institutions collaborate with both internal and external players. They share knowledge openly around well-defined problems and communities.”

The open innovation model proposes that companies should explore external innovation pathways to supplement their current businesses. Some have suggested that the traditional closed innovation models are no longer sufficient, and companies must now collaborate with external partners to gain access to new markets, technologies, and ideas. However, this is not to say that intellectual property rights will disappear. IBM was careful to note that their new approach will not eliminate intellectual property protection: “IBM, like most companies, is still going to protect its innovations using copyrights, trademarks, trade secrets, and patents. You simply can’t do innovation at scale without a thoughtful, proactive IP strategy to protect parts of what you have created.”

As traditional R&D trends towards a more diversified approach to IP protection, it will be critically important for companies to thoroughly understand the scope and content of their patent portfolio, and further understand how that portfolio relates to future research and development. The disclosure of something that turns out to be an extremely valuable innovation could result in the loss of valuable IP rights. Alternatively, the failure to collaborate could stunt innovation or result in technologies that cannot be freely practiced without key collaborators. Thus, the decision to patent, keep a technology as a trade secret or share that technology with collaborators will be a highly circumstantial decision that must be informed both by a company’s existing IP portfolio and overall business strategy.

Sarah M.D. Luth is an Intellectual Property Attorney in the MVS Biotechnology & Chemical Practice Group. To learn more, visit our MVS website , or contact Sarah directly via email .