Legal, technology, business, and academic professionals currently are debating whether an invention autonomously generated by artificial intelligence (AI) should be patentable in the United States and elsewhere. Some proponents of patentability argue that if AI, by itself, is not recognized as an inventor, then AI owners will lack protection for AI-generated inventions and AI innovation, commercialization, and investment (collectively, AI innovation) will be inhibited as a result. Some of those proponents further argue that, without patent protection as an option, AI owners increasingly will opt for trade secret protection, which by design reduces public disclosure of corresponding inventions and, as such, still will inhibit AI innovation. Some opponents of patentability, on the other hand, argue that patenting AI-generated inventions will promote those inventions and discourage human-generated inventions, thereby reducing human innovation and ultimately competition, because patent ownership will become concentrated, or more concentrated, in fewer entities—in particular, large, well-funded entities.
As that debate continues, innovators are left to deal with reality. The U.S. Patent Act currently does not offer protection for AI-generated inventions where AI is the only named inventor. Because of that void, trade secret protection for AI-generated inventions may become more popular. Indeed, such an outcome is likely because the Defend Trade Secrets Act (DTSA), for example, can protect inventions and other information autonomously generated by AI.
Eligibility for trade secret status under the DTSA is one thing. Satisfying the DTSA’s requirements for trade secret status is another thing entirely. More specifically, the requirements that an owner take reasonable measures to keep its information secret and that the information not be readily ascertainable through proper means present a unique challenge where the information—i.e., the potential trade secret—is AI-generated information. In short, to satisfy those requirements, an owner must not only take reasonable measures to maintain the secrecy of the AI-generated information but also the secrecy of the underlying, or generative, AI such that neither the AI-generated invention nor the generative AI is readily ascertainable through proper means.
Ultimately, satisfying the DTSA’s requirements for trade secret protection is achievable through a focused intellectual property (IP) strategy. Such a strategy may include dual trade secret protection where, as noted above, both the AI-generated information, such as an AI-generated invention, and the generative AI are protected as trade secrets. Alternatively, such a strategy may include complementary IP protection where the AI-generated information is protected as a trade secret and the AI itself is protected partially by a patent and partially as a trade secret. In either case, concerns about increased trade secret protection inhibiting AI innovation appear to be overstated.