IP Protection for Algorithms

Once an esoteric set of mathematical problem-solving rules, algorithms are no longer restricted to the realm of computer science. Whether it be in the background on social media, running bus schedules and traffic light patterns, or bringing AI to life, they touch nearly everything we do.

For many companies, algorithms are their lifeblood, and increasingly so. In 2022, 63.5% of patents issued were software related, versus just 26.5% in 1991 and 51.7% in 2016.

Yet, patenting algorithms (and software) remains notoriously difficult. Many computer transactions in algorithms are considered “abstract ideas” that would fail to qualify for patent protection, unless used in a specific and novel way that creates a notable result, like Google’s original search and sorting engine.

This, of course, can be a high bar. We see many companies shying away from patents for their algorithms. The difficulty in obtaining patent protection is compounded by the fact that the content of patent applications will be made public, and exposing that IP without guaranteed patent protection is not for the faint of heart. Patent applications can sometimes take so long that the algorithm is obsolete by the time the patent is secured.

An artist’s depiction of Artificial Intelligence, which uses algorithms as its building block.

So what set of rules do we adopt to solve for the problem that arises when your algorithm is not right for patent protection? For that, we turn to Trade Secrets and Copyright.

Copyright is a good alternative. We usually see copyrights on creative things, like books, photographs and paintings. In legal terms, Copyright covers “fixed works in a tangible medium,” but they do not cover ideas, procedures and processes. So, while the algorithm itself, being a mathematical method, does not qualify for copyright protection, its source code will - once you put the algorithm in writing, it becomes fixed in a tangible medium. An application for copyright registration can include only parts of the algorithm, so the entirety of it can remain confidential.

Trade Secret, on the other hand, is a great alternative. Trade secrets are a type of unofficial intellectual property that can offer substantial protection over “miscellaneous” unregistrable intellectual property - things like formulas, proprietary information and customer contact lists. KFC and Coca-Cola have trade secret protection over their recipes, famously keeping them in high-security vaults.

To qualify for trade secret protection, 1) the subject matter has to be information, 2) the secrecy of which is valuable to the company, and 3) the company has to take reasonable efforts to keep it a secret. Because there is not a registration for trade secrets, it is important to maintain these three requirement. The biggest dispute will usually end up being whether the efforts to keep it a secret were reasonable, so companies would need to take extra steps, like bolstering their security infrastructure and requiring non-disclosure agreements for all employees and vendors who come in contact with the secret information. the measures you take will be highly dependent on the size and type of company.

No, Pepsi Was Not Forced to Change The Name of Sierra Mist After Trademark Clash With Influencer Cierra Mist

Many of you have seen the viral rumor that Pepsi Co. was forced to change the name of their Sierra Mist soda in response to a trademark clash with social media influencer, Cierra Mist.

The influencer claims that Pepsi Co. sent her a cease and desist letter demanding she stop using her name. According to her, in response, she did some research and learned that Pepsi Co.’s trademark Registrations had lapsed, which promoted her to file a trademark application of her own, in order to block Pepsi Co. from their rights to the Sierra Mist name. She says that after her plan was successful, they offered to buy the brand back from her for millions of dollars, but she refused.

Upon fact check, this was determined to be false.

Pepsi Co. still owns multiple trademark registrations for Sierra Mist, while there are no registrations or applications for a "Cierra Mist." Instead, it seems that the soda giant simply decided it was due for a rebrand and formula change, so it pivoted to a new lemon-lime beverage called "Starry."

This same influencer is rumored to have spread some other lies in the past, so we are not surprised.

Uh Oh! Ideas Are Not Protectable Intellectual Property. Here Are 7 Other Ways To Keep Your Brainchild Safe

One of the challenges inventors and founders face is that an idea alone is not protectable intellectual property. That’s right - copyrights, trademarks and patents need not apply. Take Uber, for example, they had this great ride app share idea, but after time, similar apps were launched by competitors.

Not all is lost though! When an idea is the basis of your company, there are clever ways to create a wall of protection, even if the idea itself is still fair game.

1)  Trademarks. Filing applications for trademark registrations will protect your brand name and logo, as well as any additional brands you use. There can be many! In fact, Uber has about 140.

2) Trade Secrets. Utilizing trade secrets can help you shield certain practices, processes and information. Coca-Cola and KFC have their recipes under lock and key, guarded day and night.

3) Patents. Filing patent applications is a great way to keep your idea from being copied successfully, especially if you have certain technologies that maximize the function of your idea. Uber, for example, has over 1,000 patents.

4) NDAs. Have a lawyer draft Non-Disclosure Agreements for you to use with business contacts, employees or contractors. For any company, new or old, it is inevitable to be in a setting where you have to share unprotected ideas, whether it be daily operations with employees, pitching to investors, or working out a potential acquisition.

5) Copyrights. The design of your app, website, photos and marketing materials are all copyrightable. This can offer an extra layer of protection against copycats.

6) Security! Bolster your security measures, especially for emails and data storage. Depending on your needs, that could be just regularly updating your email passwords, or encrypting messages and adding two-factor authentication for logging in to your management systems.

7) Use Discretion. Be careful who you share your idea with. This one might seem a little obvious, but it does not hurt to add this as a reminder. Having a great idea can be exciting, so it is natural to want to talk all about it.

So remember that with small pieces of Intellectual Property protection, you can keep your brain child safe. It has been working for Uber all these years later!

Trying to Break Into the US Market? These Three Must-Know Trademark Pointers Are For You

When it comes to trademark rights, the United States simply does things differently. After years of working with non-US companies trying to bring their brand to the US, we have noticed certain specific pain points that create a learning curve. Trademark Attorney Sarah Stemer shares three big things to keep in mind, to ensure the smoothest transition and long-lasting US trademark rights.

[WATCH]: 8 Big Reasons To File An Application For Your Trademark

Why should you file an application for your trademark? Stemer Law’s own Sarah Stemer, shares her 8 biggest reasons. Includes an overview of domain name protection, how to access to the Amazon Brand Registry, and even a fun fact about LEGOs. For even more reasons to register your trademark, be sure to check out our article that lists 18, at this link.

[WATCH]: Sarah Stemer's Trademark Tips For Startups and New Companies

From company name to portfolio of registered trademarks here we go!

Going from naming your new company or startup, to having a portfolio of registered trademarks can seem daunting. It’s important though, so we made this video to make the process a little more approachable for you. Trademark Attorney, Sarah Stemer, discusses trademark tips for startups and new companies when they are in the process of developing or protecting their brand, with a brief discussion about trade dress, international trademarks, trademark searches and common pitfalls. Part of Stemer Law’s TM101 series.