INTRODUCTION Contributed by: Claudia Ray, Joseph Loy, Josh Berlowitz and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
protection is not limited to human inventors, and the broad definition of “trade secret” may enable protec - tion of entire AI platforms, training algorithms, inputs and outputs. The scope of protection for AI-generated trade secrets remains largely unexplored, however, and hinges on issues such as: • the extent to which designers of an AI system hold trade secret rights as to algorithms that have evolved in a way that the designers cannot articu - late; • the impact of such lack of knowledge on trade secret misappropriation claims and recoverable damages; and • the evolving efforts to define transparency in AI. Shifts in Employment Practices Chambers Trade Secrets Global Practice Guide 2026 focuses on best practices for protecting trade secrets and avoiding the pitfalls of encroaching on others’ trade secret rights. A key area to which trade secret owners must remain alert is the use of technologi - cal and other protections to safeguard their valuable intellectual property. Recent decades have seen a sea of change in the way employers recruit and maintain their workforce, including hiring a substantial number of remote employees, increased use of independ - ent contractors and the rise of the “gig” economy, in which an ever-rotating cast of independent work - ers may have access to the company’s confidential information. On top of these existing trends, shifts to hybrid and/or fully remote workplaces, even as many sectors make a push to return to traditional office-based employ - ment, require balancing agility and innovation with appropriate confidentiality controls. The increased focus on remote work underscores the need to create sophisticated confidentiality measures to protect trade secrets without impairing the ready interchange of ideas and information in collaborative work environments, which may be necessary to pro - mote the very innovation that generates trade secrets. Long gone are the days when a company could simply lock its crown jewels in a vault and rest easy knowing its trade secrets were safe.
In addition to the lasting shift away from traditional workplaces, lawmakers around the world have dem - onstrated increasing aversion to non-compete agree - ments. While these changes would result in an even more mobile workforce that may choose to pursue new opportunities and leverage experiences from prior companies, they also cause the risk of misap - propriation to grow. Employees may feel incentivised to use knowledge and insight gained at prior employ - ers to differentiate themselves in a new job. Without adequate training and precautions, the line between acquired skills and acquired confidential information could blur. New employers (whether leanly staffed start-ups or global heavyweights) should implement stringent procedures for insulating themselves from others’ confidential information, while former employ - ers must remain vigilant in safeguarding the improper use of their hard-earned property or risk losing it to competitors. Litigation and ADR Because disputes over trade secrets arise even when such precautions are taken, chapters in this guide explore the latest trends in trade secret litigation and alternative dispute resolution (ADR) proceedings. Given the high stakes for both sides in a trade secret dispute, it will be important for counsel to consider the full spectrum of offensive and defensive resources that may be available under statutory and common law misappropriation laws and advise clients accord - ingly – whether that entails implementing procedures for effectively maintaining the confidentiality of trade secrets or minimising the risk of coming into the pos - session of or using a competitor’s trade secrets. Increasing Prevalence of DTSA Lawsuits In the USA, just as the Uniform Trade Secret Act dis - placed nearly all state-specific common law misap - propriation schemes, providing a theoretically uni - form body of law across the many states, Congress enacted the Defend Trade Secrets Act (DTSA) in 2016, building on earlier federal economic espionage stat - utes to create a federal system of trade secret law. Now that the first wave of DTSA cases has made its way through the federal courts, greater uniformity and certainty on key issues is beginning to be seen.
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