The Black Box Problem In AI Trade Secret Litigation: How Do You Prove Use?

The dismissal of xAI's trade secret claims against OpenAI earlier this month meant that the court never reached what will surely be one of the thorniest questions in AI trade secret litigation: at the end of the day, how would xAI be able to prove that OpenAI actually used any stolen trade secrets? My earlier coverage discussed Judge Lin's order dismissing the case, finding that xAI had failed to plead facts connecting OpenAI's own conduct to the alleged misappropriation by its former employees. There was no plausible inference that OpenAI induced the theft, and no allegation that it ever received or incorporated what was stolen.

However, had xAI survived the motion to dismiss, it would have eventually faced a second and perhaps harder problem: how do you demonstrate (particularly before discovery) that a specific stolen file or methodology shaped anything inside a frontier AI model? That is the question this post examines.