Treat AI prompts as an unadjudicated risk

What is and is not known

An unadjudicated risk is one that no court or patent office has ruled on. Whether typing an invention into an AI tool counts as a public disclosure is such a question (Saul Ewing). This lesson does not say that a prompt is a public disclosure, and it does not say that a prompt is safe. Either statement would go beyond the law. Treat it as a risk to manage.

Four tiers of tool

The tiers below are our judgment. They are analogy, not court holdings.

• Consumer tool with training on. Treat it as not confidential.
• Consumer tool with training off. This is better, but it depends on the terms and on how long data is kept.
• Enterprise or API tool with contractual confidentiality. This is comparable to a vendor under a nondisclosure agreement.
• Self-hosted tool. This has the lowest exposure.

These tiers describe categories, not brands. They apply to any AI tool, including tools built for patent work. We make no claim about any vendor's terms, and terms change, so read the current ones yourself.

Questions to ask about any tool

In our judgment, these questions matter most before you enter an unfiled invention:

• Does a contract bind the provider to confidentiality?
• Is your input used for training?
• How long is your input kept, and who can see it?
• Can a chat be shared by link, and can a shared link be found?
• Where is your data processed?

The last question matters at every tier. The USPTO has warned that AI tools "may utilize servers located outside the United States", raising export issues that a foreign filing license does not cover (89 FR 25609). A foreign filing license is the USPTO's permission to send invention details abroad for filing.

The practical rule

In our judgment, the two cleanest options are to file first, or to use a tool with contractual confidentiality after reading its terms. Filing first removes the question for the material in your application. If you have already used an AI tool and are worried about it, write down which tool, which settings and what you entered, then raise it with a patent attorney.