ECUADOR Law and Practice Contributed by: Arianna Zurita Farías, Annabel Muñoz, Javier Estupiñán and Juan José Flores Rabascall, VIVANCO & VIVANCO
ceedings, limiting access to sensitive information to what is strictly necessary. In more serious cases, par- ticularly where infringement is carried out on a com- mercial scale or involves bad faith conduct, criminal liability may arise. 7.4 Enforcement Against AI-Enabled Infringement From a procedural standpoint, while SENADI holds statutory authority to conduct IP infringement inspec- tions, proving the illicit use of protected works within AI systems demands highly specialised forensic IT analysis. Given the technical opacity of these algo- rithms, the reversal of the burden of proof – expressly established in the COESCCI for process patents – becomes critically relevant. Under this doctrine, if the resulting output is identical to a protected work and the rights-holder cannot rea- sonably determine the exact computational process used, the evidentiary burden shifts to the defendant, who must prove that their AI model employed an independent, non-infringing method. This legal pre- sumption is vital for plaintiffs seeking to overcome the “black-box” barrier inherent in machine learning models. Generally, platforms benefit from safe harbour pro- visions regarding third-party content, provided they lack actual knowledge of the illegality and act expedi- tiously to remove the infringing material upon notifica- tion (notice and takedown procedures). However, if a generative AI platform actively intervenes in the struc- turing, curation or “creation” of the infringing content, it forfeits its neutral intermediary status and may face direct or joint and several liability. 8. Intersections and Overlaps 8.1 Choice of Protection and Strategic Considerations In Ecuador, the choice between different forms of IP protection depends on the nature of the asset, the business strategy and the level of disclosure the owner is willing to accept. The same subject matter may be protected in different ways – for example, a product may combine patent protection for its techni-
cal features, trade mark protection for its brand and copyright for creative elements. In general, patent protection is preferred for techni- cal inventions that meet the legal requirements and where the owner is willing to disclose the invention in exchange for strong, time-limited exclusivity (typi- cally 20 years). By contrast, trade secret protection is more suitable where the value lies in confidentiality and the information is not easily reverse-engineered. Trade secrets do not require registration and may last indefinitely, provided secrecy is maintained. Key factors influencing this choice include disclosure versus confidentiality, duration, ease of enforcement and the risk of reverse engineering. In practice, busi- nesses often adopt a combined strategy, protecting certain aspects through patents while keeping others as trade secrets to maximise their competitive advan- tage. 8.2 Cumulative and Overlapping Protection Ecuador allows cumulative protection, meaning that the same subject matter may be protected under different IP regimes, provided that each set of legal requirements is independently met. For example, a product may be protected by copyright (artistic ele- ments), industrial design (appearance) and trade mark law (distinctive signs). There is no absolute prohibition on overlapping pro- tection, but each right applies only to the elements that meet its specific criteria. In particular, purely func- tional features cannot be protected as trade marks or designs, and trade mark law cannot be used to obtain perpetual protection over elements that should remain in the public domain. In practice, authorities assess each right separately, focusing on the nature of the element involved (func- tional, distinctive or artistic) and the likelihood of con- fusion or unfair advantage. 8.3 Patents and Trade Secrets Before filing a patent application, trade secret protec- tion is commonly used to safeguard technical infor- mation, particularly where premature disclosure could affect patentability. During the patent process, it is
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