Can You Keep (an AI) Secret? The Role of Trade Secrets in IP Protection Strategies for AI
As artificial intelligence (AI) technology advances, and companies invest hundreds of millions of dollars to stay ahead of the competition, the strategies for protecting the related IP have received increasing attention. Some of the primary types of IP protection – patents and copyrights – are applicable to certain aspects of AI technology. However, various decisions by the U.S. Patent Office and U.S. Copyright Office limit the patentability and copyrightability of AI-generated inventions and works of authorship. As a result, trade secrets are playing a vital and evolving role in the protection of certain AI technologies. Companies need to understand how trade secrets can be used as part of a comprehensive IP protection strategy for AI. However, as with patents and copyrights, there are limits to the scope of protection that can be secured by trade secrets. And the risk of loss of that protection must be considered.
There are some unique challenges with AI trade secrets, including identification of the relevant aspects of an AI system and new technological threats that may reveal trade secrets, such as prompt injection and model distillation. In some cases, adversarial attacks via prompt injection or model distillation techniques are used to extract trade secrets from AI systems. Companies need to understand these issues and adopt trade secret protection strategies with these challenges in mind.
Also, emerging AI regulatory frameworks contemplate certain disclosures for safety, oversight, or transparency that may conflict with trade secret protections. Companies that intend to rely on trade secret protection need to be aware of and monitor such regulations.
See the full article for a more detailed exploration of these issues.