Consultation outcome

Impact of artificial intelligence on UK trade secret law

Updated 23 March 2021

Introduction

A trade secret is a piece of information, treated as confidential by its owner, which has commercial value because it is secret. UK law protects trade secrets against unjustified use and disclosure. In the UK, protection for trade secrets is provided by two parallel regimes: by common law (the law of confidence) and by state (the Trade Secret Regulations or parallel provisions such as the Computer Misuse Act 1990). In practice, trade secrets are often protected by contract.

This protection recognises the value of secret information in supporting business competitiveness. Many types of confidential information can be protected as a trade secret. This includes technical know-how, product information, commercial data, or product names.

There is no time limit to trade secret protection for as long as information remains secret and commercially valuable. Trade secret owners are not required to make public information such as required by the patent process. So, there may be a good business case for protecting information with trade secrets rather than with other intellectual property rights. There may be, however, no option other than using trade secrets if information cannot be protected by formal intellectual property rights.

AI and trade secret law

The extent that formal intellectual property rights (patents, designs, trade marks and copyright) are available for the artificial intelligence (AI) sector is covered in other sections of this call for views. We would be interested to hear your views on trade secrets providing protection not provided by formal intellectual property rights.

Trade secrets may not be suitable for protection if the owner does not have the knowledge or resource to keep information confidential. This may be an issue for small businesses starting up in the AI sector. Moreover, trade secret protection does not give exclusive rights. Competitors are free to create independently the information protected as a trade secret. Exclusive rights may be a necessity for some AI businesses, for example if a key technology can be easily reverse engineered once made public.

Trade secrets could be an option to protect AI developments that are excluded from patent rights. Trade secrets, unlike patents, keep the details of an invention out of the public domain. This may risk research efforts being duplicated and follow-on innovation limited.

Some commentators have ethical concerns with the progress and operation of AI systems. They have questioned whether the use of trade secrets keeps a proper assessment of the ethics of AI systems from the public domain.

Questions

1. Is trade secret protection important for the AI sector? Does the nature of AI technologies and business influence your answer?

2. Does the nature of AI pose any problems if UK trade secret protection is required? Does UK trade secret law give adequate protection to aspects of AI technology where no other intellectual property rights are available?

3. What are the advantages and disadvantages of using trade secrets in the AI sector? Could information that is not shared inhibit AI development?

4. Do trade secrets cause problems for the ethical oversight of AI inventions?

Respond to the call for views by emailing AIcallforviews@ipo.gov.uk

Respond to the call for views by emailing AIcallforviews@ipo.gov.uk