SLOVENIA Law and Practice Contributed by: Nataša Pipan Nahtigal, Veronika Novak and Katarina Čepon, Šelih & partnerji
8.2 Cumulative and Overlapping Protection Cumulative Protection Slovenian law generally allows cumulative protection of the same subject matter under multiple IP regimes, provided that the requirements for each regime are independently fulfilled. Limits on Overlapping Protection There are important limitations. Shapes that are purely functional or necessary to achieve a technical result cannot be protected as trade marks or designs. In addition, copyright protection requires originality, meaning not every design will qualify for cumulative protection. Resolving Conflicts Courts do not automatically exclude one form of pro- tection in favour of another. Instead, they assess each claim separately, taking into account the purpose of the relevant right (eg, distinctiveness for trade marks or creativity for copyright). In cases of conflict, courts balance factors such as the scope of rights, timing, good faith, and the risk of market confusion, while also preventing misuse, such as attempts to extend protection beyond its intended limits. 8.3 Patents and Trade Secrets Protection Before, During and After Patent Filing Confidential know-how and technical information may be protected as trade secrets before a patent appli- cation is filed, as long as they remain undisclosed. During the patent process, trade secret protection can continue in parallel, but only for information that is not revealed in the application. In practice, this often includes manufacturing meth- ods, optimisations or implementation know-how that are not part of the patented disclosure. Effect of Patent Publication Patent publication makes the technical content of the invention publicly available. As a result, any informa- tion disclosed in the application or granted patent can no longer qualify as a trade secret, since it no longer meets the requirement of secrecy.
AI. However, this problem is partially addressed by the new EU AI Act, which introduces transparency obligations for any output created by AI, while provid- ers must disclose information about the data used for training and ensure compliance with EU copyright law, including respecting opt-outs for text and data mining. There are also the general lawsuit claims provided in ZASP which would be effective against infringements, even when generative AI tools are used. The current law does not appear to provide any basis for possible secondary liability of platforms and tool providers. 8. Intersections and Overlaps 8.1 Choice of Protection and Strategic Considerations Choice of Protection The choice between different forms of IP protection depends on the nature of the subject matter and the holder’s business objectives. Patent protection is typi- cally preferred for technical solutions that can be eas- ily reverse-engineered or cannot be kept confidential. By contrast, trade secret protection is more suitable for information that can be maintained in secrecy over time, such as processes, formulas or algorithms not evident from the final product. Key Factors The decision between patents and trade secrets is usually influenced by: • the ability to maintain secrecy; • the risk of reverse engineering or independent development; • the duration of protection (limited for patents, potentially indefinite for trade secrets); • costs and formalities (required for patents, not for trade secrets); and • the impact of disclosure (patents require publica- tion). In essence, patents offer strong but time-limited exclusivity in exchange for disclosure, while trade secrets provide potentially longer protection, but only as long as confidentiality is preserved.
279 CHAMBERS.COM
Powered by FlippingBook