Protecting artificial intelligence via trade secrets

From search engines to social media feeds to smart assistants, artificial intelligence (AI) is already integral to modern life.

Building upon the foundations of the internet and the digital age, and rapid advances in technology, AI is propelling us into the next digital frontier.

AI describes any computer-aided technology that simulates human intelligence, and broadly covers machine learning, deep learning, and neural networks. Its application is extensive and spans both personal and professional contexts.

In gauging the economic potential for AI between now and 2030, PwC found that global GDP could be 14% higher in 2030 than it was in 2017 as a result of AI—the equivalent of $15.7 trillion—making it the “biggest commercial opportunity in today’s fast changing economy”.

And the McKinsey Global Institute estimated that around 70% of companies will be adopting some form of AI by 2030.

AI is an increasingly important asset, then, for businesses, organisations and inventors, but this presents both an opportunity and a dilemma in terms of how to protect it.

Before looking at the intellectual property implications of AI, though, it’s important to consider definitions. If a trade secret is information that a business wants to protect because it has particular value to and is unique to that business, what would an AI trade secret look like?

Secret sauce: What is AI?

James Tumbridge, partner and barrister at Venner Shipley in London, stresses the importance of defining “true AI” as opposed to software.

“Quite often people call me and say they’ve got AI. And when I look at it, it’s not AI. When it is true AI and it’s actually learning and developing to perform a function, those who created it and own it might [then] wish to claim that what it’s learning to do is confidential, possibly a trade secret.”

But he points out that AI trade secrets differ from more straightforward and easily contained trade secrets such as a recipe, for example.

“The much more problematic trade secrets come up in software and AI,” he explains. “The development of products, particularly in the software space, is iterative. You don’t know which step becomes the most important until after the event.”

True trade secrets, particularly with AI, come into play with algorithms—or the “secret sauce”, according to Robert Peake, also a partner at Venner Shipley.

“Algorithms are based on source code, and the source code underpinning those algorithms is typically going to be treated by the owner or by the developers as being a trade secret,” he says.

Unique challenges

Given the dynamic nature of technology, there are unique challenges in protecting AI trade secrets. This starts from within, in the realm of employee access.

“It’s important to remember that the risk to trade secrets comes not just from interaction with third parties, but also from within,” explains Peake. “Businesses need to be aware that not everyone across the business needs to have access or should have access to all of the information you have.”

And, since the tech sector is known for its high turnover of staff, there is the issue of employee mobility.

“When we’re talking about the coding of computer software, there can be a revolving door of individuals contributing to software, especially in the early days,” adds Peake. “That’s how startups tend to function.

“[But] that’s a lot of people who are coming in and getting a glimpse of what is going to become the value proposition for your business. So businesses need to be very careful about that.”

Companies estimated to adopt some form of AI by 2030