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ARTICLE · 05 DECEMBER 2025

Trade Secrets In The AI Era: Navigating Transparency Under The EU AI Act

Herbert Smith Freehills Kramer LLP
Herbert Smith Freehills Kramer LLP
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Herbert Smith Freehills Kramer LLP

Herbert Smith Freehills Kramer LLP

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Artificial intelligence thrives on cumulative learning and optimisation and, unlike traditional software, the competitive edge of AI systems often lies not in the source code itself...

GlobalIntellectual Property
Giulia Maienza
Giulia Maienza
Maximilian Martini
Maximilian Martini
Pietro Pouché
Pietro Pouché
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Artificial intelligence thrives on cumulative learning and optimisation and, unlike traditional software, the competitive edge of AI systems often lies not in the source code itself, but in how the systems themselves are trained. For this reason, AI developers increasingly rely on trade secrets in addition to, or instead of, patents to protect key assets. While AI-related patents, especially at EU level, may face significant challenges (e.g. excluded subject matter or lack of technical effect), trade secret protection can be immediate, flexible and last indefinitely if secrecy is duly preserved.

In practice, some of the most valuable assets in AI ecosystems are ideally suited for trade secret protection, including:

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