Your AI prompt is not enough!
In the patent world, it is well settled that merely posing a problem or a challenge is not enough to make you an inventor of the solution. For example, suppose I went to a pharmaceutical company and said “It would be great if there was a new drug for treating lung cancer without any unpleasant side effects”. The company scientists then spend years and millions of dollars developing a new drug that is safe and effective. Am I the inventor? Of course not, I merely expressed my “wish” or “challenge”, but I did not intellectually contribute to the solution (or intellectually contribute to at least one claim of an issued patent).
Similarly, if I ask someone to paint a picture of my dog or cat wearing cute clothes, the copyright is created by the painter, not me. I merely requested an artistic creation to be made. The same logic applies to other creative works generated by AI such as images, videos, text, and music.
Why Prompts Don’t Equal Creativity
The same idea applies when you prompt an AI to create something. Recent case law and government policies are saying that AI cannot be a patent inventor or a copyright artist. These forms of IP were created hundreds of years ago to protect human inventions and human works of art. AI is now raising interesting and challenging questions around how to protect these creations.
Some may argue that a human is involved, as they typed the prompt. This simple act of requesting an output from the AI, however, is no different than my suggesting a new drug for lung cancer.
What’s Next for IP and AI?
I expect that there will be a lot of litigation and ultimately invalidated patents that list a human inventor when all they did was draft a prompt. Did the human conceive of the patented invention? Arguably not. Will a patent examiner know this during examination? Highly unlikely. This issue will likely only surface during discovery and depositions and will provide an easy path for the alleged infringer to invalidate the asserted patent or patents.
Assuming that patents and copyrights remain unavailable for AI-created works, what other forms of IP can be used? Both trademarks and trade secrets do not require human involvement, and therefore could be created by AI and protected by normal means.
What do you think?
Will an AI be allowed to be an inventor, co-inventor, or copyright artist?
If so, can the AI be an “owner” of the created works?
Does the prompt writer have an ownership interest in the output, or does the AI model creator own all outputs?
AI continues to present interesting challenges to the IP system, and forces us all to reexamine the basic tenets upon which IP law was created.
Why are programs and data considered trade secrets?
Because they contain algorithms, models, processes, and customer insights that provide competitive advantage. When exposed, the loss is immediate and irreversible.
What is the first step to protecting programs and data?
Create an inventory and identify which assets qualify as trade secrets, including code, models, datasets, prompts, and internal tools.
Why is classification important for trade secret protection?
Classification clarifies sensitivity, risk, and required controls. It strengthens governance and ensures teams understand how assets should be handled.
How does access control prevent trade secret loss?
Limiting access by role, tracking interactions, removing outdated permissions, and restricting repositories prevents internal misuse and accidental exposure.
How does AI increase the risk of trade secret leakage?
Employees often paste confidential information into public AI tools, causing it to become training data. Governance and private AI tools prevent this.
What legal agreements support trade secret protection?
NDAs, invention assignment agreements, contractor agreements, and offboarding processes ensure confidentiality obligations are clear and enforceable.
Why is employee training essential for protecting trade secrets?
Most exposure occurs through human behaviour. Training builds awareness and creates a culture of confidentiality across the organisation.
How do audits improve trade secret protection?
Audits identify weak points like outdated access, unsecured repositories, shadow AI use, and untracked datasets — key for legal defensibility.
How does Tangibly help protect programs and data?
Tangibly provides automated trade secret identification, classification, access tracking, governance workflows, and AI-driven risk detection.
