Is your AI use putting your trade secrets at risk? | ITCC

On this episode of In the Counsel's Chair, host Jack Needham talks with Knobbe Martens partners Benjamin Katzenellenbogen and Bryan McWhorter about how AI is testing trade secret law. They explain what qualifies as a trade secret under federal and California law and why trade secret protection has grown in importance. They also cover the two sides of the AI risk: confidential information that employees put into AI tools, which can lose protection depending on a provider's terms of service, and AI-generated output, which often can't be patented or copyrighted without a human creator. The guests discuss what early court decisions suggest, how the "readily ascertainable" standard may play out when AI can be prompted to reveal information, and why companies should build workable AI use policies rather than banning the tools outright.

In this episode

• Trade secret basics

• How AI puts trade secrets at risk

• Terms of service and private AI models

• What courts have said so far

• Protecting AI-generated output

• Will the rules change?

• Building workable AI use policies

Guests

Benjamin A. Katzenellenbogen, partner, Knobbe Martens

Katzenellenbogen serves as Chair of Knobbe Martens' Design Patent Litigation practice and Co-Chair of the Trade Secret Litigation practice. He has been litigating patent, trademark, trade secret and other intellectual property disputes for more than 25 years. Ben handles cases throughout the litigation process, from inception through trial, and appeal.

Bryan McWhorter, partner, Knobbe Martens

McWhorter is Co-Chair of Knobbe Martens' Artificial Intelligence Practice. He focuses on patent procurement and dispute resolution, particularly for companies in the software, telecommunications, and food and beverage areas. His practice includes all aspects of patent development and acquisition for both utility and design patents, including identifying patentable concepts, drafting patent applications, and negotiating with patent offices to gain allowance of applications.