Companies Advised to Treat Sophisticated AI Prompts as Intellectual Property

Much legal discussion about artificial intelligence (AI) focuses on whether using unauthorized content to teach AI is transformative, and therefore, not infringement, or the rights and liabilities of AI-created content. What is not often mentioned is the interplay between the development of sophisticated prompts and intellectual property rights.

Sophisticated prompts are complicated instructions provided to an AI tool that are designed for and intended to manipulate how an AI tool processes information. Essentially, they are the “programming” of the AI so that the AI is aware of how it should reason and perform the tasks described in the prompts. These types of prompts are distinguishable from prompts that are essentially simple questions for the AI tool, like “tell me the weather predictions for the next five days.” Under that definition, sophisticated prompts, if non-obvious and novel, may be entitled to patent protection.

According to a recent Forbes article by Luis Ibarra, Chief Technology Officer at PingWind Inc., companies are not adequately evaluating and protecting their sophisticated prompts that result in highly successful, income-generating outputs. Ibarra posits that companies are largely missing out on an opportunity by treating sophisticated prompts as “disposable inputs” rather than “engineered assets…that drive revenue and automate critical workflows.” He coined this an emerging “prompt patent storm” that corporate America is not prepared to address. Corporations are well-served by heeding the warning.

Keep in mind, however, that a patent is not the only available method of protecting sophisticated prompts. Laws protecting trade secrets and copyrights may be better suited to the task, depending on internal goals and/or the likelihood of achieving a patent grant.

For one, even if the prompt can meet the high hurdles for patent protection, a company should be aware that a patent application (which must describe the invention for which one seeks to patent) is a public document, and once granted, patent protection is limited (20 years for a utility patent). Separately, while the prompts themselves are likely not copyrightable, the arrangement of original prompts may be – though filing an application for copyright protection also is public, and copyright protection for companies also has some limitations — lasting the shorter of 95 years from the date of first “publication” (which is a term of art) or 120 years from the date of creation. On the other hand, protecting the prompts as a trade secret can offer a lifetime of protection if the company has a strong confidentiality compliance practice in place and the prompts are impervious to reverse engineering.

Whether an emerging “storm” or not, considering the protectability of revenue-driving prompts is simply good practice. Contact your intellectual property attorney for advice on the means of potential protection.