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ktslaw.com

Trade secrets have been a recognized form of intellectual property for at least two centuries, and the advent of new technologies has always challenged either the scope of trade secret protection or the capacity to maintain confidentiality. Today, generative artificial intelligence (“Gen AI”) presents new challenges – and opportunities – for trade secret rights. This technology has impacted every major industry across the globe and is a topic around both the kitchen table and the corporate conference room. Investment in Gen AI has soared past a trillion dollars, the marketplace for Gen AI powered products will surpass that mark in the coming years, and nearly every major business has implemented Gen AI as a part of their operations, effecting as much as half of impacted employee activity. Some observers resort to doomsaying about Gen AI’s threat to human survival. A chorus of predictions adds to the clamor about the Gen AI’s threat to trade secrets and even their potential demise. Some have written their eulogy, saying that Gen AI “will destroy” trade secrets and that only a “blanket ban” on Gen AI will protect them. Others eagerly await the use of Gen AI to unveil Coca Cola’s secret formula, claiming that it could “lose all protection” if “an advanced AI program” replicates it. Still others believe that any trade secrets laying hidden in AI training data are “public” even if never found. There are reasons to doubt these negative forecasts.  The world’s most valuable trade secrets are not a few clicks away from becoming valueless public knowledge. No court has held that Gen AI has stripped even one alleged trade secret of legal protection. As this article outlines, while Gen AI may pose new challenges for trade secret holders, it should not pose an existential threat to trade secrets as a protected form of intellectual property. I

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