A recent UK tribunal decision, in which the related issue of waiver of legal professional privilege was discussed, does not inspire confidence that decision-makers have sufficient understanding of the technology, terminology, and relevant contractual arrangements to reach sensible conclusions. The tribunal wrongly classified AI tools as being either ‘open source’ – the use of which, it said, would lead to a public disclosure and waiver of privilege – or ‘closed source’ – use of which the tribunal considered would not result in a waiver of privilege. The terminology here is incorrect and, indeed, the entire distinction on which it rests is legally irrelevant. Yet several law firms have already repeated it, without question, in their own client guidance. The error matters beyond the immigration case the tribunal was deciding. If other courts and firms adopt it, practitioners will ask the wrong questions. A waiver of privilege is bad enough, but for patent attorneys the problem could be more serious. A fatal disclosure prior to a priority date is considerably worse than an awkward discovery dispute!
In this article I will cover what the tribunal said, and why its use of ‘open source’ is wrong. I'll also explain what the term actually means, and why I think that the error matters. What protects your input to an AI tool isn't the ‘open’ or ‘closed’ nature of the model, or the provider's brand name. It's the terms and conditions attached to the specific product and plan you're using, and I’ll discuss what to look for. I’ll also discuss why I think the risk is greater for patent attorneys than for the privilege question on which the tribunal was commenting. Under the patent law in many jurisdictions – including Australia – a disclosure can destroy novelty even when the information never reaches ‘the public’ in the ordinary sense. (It is worth noting, however, that the US test is different.) And I’ll review recent developments that will affect the ability to prove when AI has been used. AI providers have started adding invisible watermarks to their output. This means it will be possible to establish with confidence that a document was drafted with AI, where previous this may have been nothing more than an allegation.
None of this is entirely new. Chatbots and other AI tools are hardly the first internet-based services that have been used by legal professionals and their clients. Have you ever paused to wonder whether you have any reason to believe that your email communications are secure, or whether the provider of a webmail service or web-based document editing tool is under any legal obligation to keep your correspondence confidential? In many cases, especially if the service is free, they may not be, and yet this does not seem to have arisen as an issue in the past two decades. Whether the same will turn out to be true of AI services remains to be seen.
