The global impact of COVID on the economy and every day life is spurring efforts to find solutions to the current COVID-19 pandemic. Innovative Canadian technology companies, either existing or pivoting in the health care space, are being fueled by funding and investment opportunities and responding to urgent demands in the marketplace.
With the realities of rapid collaboration, prototyping, and in the field testing of devices and therapies within chaotic healthcare front lines come the risks inherent with the public disclosure and sharing of intellectual property (IP). Recent cybersecurity alerts warn healthcare and research institutions working on COVID-19 of targeted hacking efforts designed to steal their intellectual property.
Alongside the drive to innovate and collaborate, it is more important than ever for startups to take stock of their IP, be aware of common pitfalls, and take steps to proactively adopt some key best practices to survive and thrive.
Take Stock of Your IP
Successful startups are mindful of the different types of IP rights and understand how they can be used to protect and leverage product development efforts to achieve key business goals.
Recent cybersecurity alerts are warning healthcare and research institutions working on COVID about targeted hacking to steal IP. This is just another reminder of the importance of vigilance and taking reasonable steps to establish and maintain the secrecy of key technology and related information.
Trade secrets can offer protection for various aspects of COVID innovation such as software source code, algorithms, data training sets, formulae, compilations of information, commercial methods, techniques, programs etc. While no application or registration is required to obtain trade secret protection, reasonable steps must be taken to establish and maintain secrecy. In turn, the covered information may be protected for an unlimited period of time for as long as the secret lasts and has commercial value.
Practically speaking, taking “reasonable steps” to maintain the secrecy of a trade secret typically involves logistical and digital mechanisms (e.g. firewalls, encryption and authentication methods, data security measures, password protections, download disabling) to restrict and monitor access to trade secret information. More guidance and practical tips for meeting these requirements can be found in a prior Bereskin & Parr’s article.
There are important limitations to trade secret protection. Trade secrets do not provide protection against reverse engineering and independent discovery. Also, while inventions that are held as trade secrets may not prevent patenting by a third party (limited exceptions to infringement are available for prior secret use).
Ultimately, the choice of using trade secret protection for a particular innovation will depend, on one hand, on the likelihood of patentability or protection by some other IP means, and the possibility of establishing and maintaining secrecy on the other. For example, many “black box” innovations (i.e. located on a company-protected server) may be better kept as trade secrets due to the practical difficulty of reverse engineering by customers.