Intellectual Property and IP Litigation
WilmerHale is a recognized thought leader on AI legal issues that provides full-service intellectual property (IP) coverage to clients seeking to use, develop or acquire AI-driven products and services. Since the release of ChatGPT in November 2022, clients ranging from startups to the largest global consulting firms have engaged us to provide business-driven advice on the front and back ends of their most critical AI-related decisions. For example:
- WilmerHale has advised clients on the infringement risks and IP rights of using generative AI in specific use cases, and our powerhouse IP litigation and appellate practices are uniquely positioned to fully defend our clients’ interests.
- WilmerHale diligence teams have conducted source code review in connection with acquisitions and advised on strategies to minimize future diligence risks created by the use of AI-based tools.
- WilmerHale’s core IP team leverages PhD-level knowledge in mathematics, computer science and life sciences to help clients procure bleeding-edge proprietary IP positions through patents, trade secrets, trademarks and copyright.
Data Privacy, Consumer Protection and Cybersecurity
The development and use of AI can raise significant privacy, cybersecurity and consumer protection concerns. WilmerHale’s leading Cybersecurity and Privacy Practice has significant experience representing clients in sophisticated data protection and privacy matters involving AI. Our attorneys represent clients in government-facing investigations and enforcement actions relating to Big Data including counseling them on cybersecurity and privacy risks posed by developing and using AI applications, synthetic media and deepfakes, as well as the leveraging of Big Data.
We help companies comply with the growing number of statutes, rules, industry self-regulatory programs and voluntary frameworks that govern privacy and consumer protection in the AI and Big Data ecosystem. Our experience spans many industries including those related to health privacy, financial privacy, electronic surveillance, mobile privacy, international data protection, and the protection of data relating to children and teens. We also have experience working on issues that are unique to the intersection of data protection and AI, including advising clients on de-identification, contract negotiations and consumer profiling concerns.
Labor and Employment
WilmerHale’s Labor and Employment Practice has decades of experience advising and counseling clients on regulatory compliance and best practices for managing a workforce. Many of our clients have begun, or are considering, using AI technologies to assist with employment decisions and workforce productivity monitoring. With the emergence of AI employment-related laws and regulations, our clients rely on us to monitor the legal landscape and provide holistic and forward-looking guidance. Our lawyers are called on to develop strategies, policies and accommodation procedures; conduct risk assessments and internal trainings; and work hand in hand with human resources and other key personnel to ensure implementation and usage remain compliant with applicable laws.
Securities and Financial Services
The use of AI-based applications is continuing to rapidly proliferate in the financial services industry and transform firms’ investment processes, communications with customers, and compliance and risk management functions. While AI-based applications offer numerous opportunities and benefits to investors and firms, they present various challenges and have attracted significant regulatory attention by the SEC, Commodity Futures Trading Commission, Financial Industry Regulatory Authority and other regulators. WilmerHale’s securities and financial services attorneys have counseled market participants and their management and boards on the legal and regulatory requirements applicable to the use of trading algorithms and predictive data analytics, governance and supervision over their development and deployment (including the use of third-party technologies), and related disclosures under the securities laws. Our team also has extensive experience advising and successfully defending firms facing investigations and enforcement actions relating to algorithmic trading and novel technologies for portfolio management and customer engagement.
Learn more about WilmerHale’s Financial Services Practice.
Emerging Companies and Venture Capital
For decades, we have provided corporate counseling to startups working from the United States’ tech industry hubs and represented them in their pivotal deals. Many of our clients are AI leaders or innovators focused on related industries, including digital health, robotics, FinTech, software, mobile technology, and the intersection of AI and life sciences. Our nationally recognized Emerging Company and Venture Capital Practice regularly helps these clients launch their companies and tackle what follows. The team helps clients develop strategies to obtain funding and we prepare and implement for them key agreements with management, employees, consultants and advisors. We also design equity incentive plans and plan their paths to liquidity. Venture capital firms, hedge funds and other investors also rely on WilmerHale to represent them in their investments in portfolio companies and navigate their complex transactions.
We assist clients in staying on top of the rapidly developing legal framework for AI and the use of data in the European Union, including the Artificial Intelligence Act and the Data Act, and we have extensive experience advising on recently passed legislation, such as the Digital Services Act and the Digital Markets Act. We have litigated questions of processing personal data, including legal basis, profiling, enforcement and other relevant matters under the General Data Protection Regulation and consumer protection laws, especially before the Court of Justice of the European Union. Our experience also includes antitrust and competition law in the context of the use of technology and in representing clients before the European Commission and national competition and regulatory authorities.
Antitrust and Competition
WilmerHale’s Antitrust and Competition Practice has significant experience representing technology clients at the juncture of innovation and regulation. Our lawyers are frequently called on to address novel competition and consumer protection challenges that arise from the imperfect fit between new technologies and older regulatory frameworks. Many of our AI-related matters sit at the edge of this frontier, where unsettled questions of law are being litigated, the stakes are high, and clients turn to us because we have the proven ability to go up against the government in the courtroom and win. Our clients benefit from the insight of our deep bench of former government officials—including senior alumni from the FTC and the DOJ’s Antitrust Division—who understand the regulators and their priorities and can craft a productive engagement strategy the moment a client becomes a target of regulatory scrutiny.
Defense, National Security and Government Contracts
Emerging technologies, including AI, impact the defense, national security and government contracts sector in unique ways. First, companies in the government contracts space need to consider how best to integrate AI into their business processes, recognizing that the special sensitivity of their work requires a nuanced approach. Second, companies need to consider how they can best develop AI tools themselves. Third, they need to examine how they can meet the procurement needs of the US government, which increasingly relies on private sector suppliers to provide cutting-edge AI for national security and intelligence applications. WilmerHale is particularly well situated to assist clients across this full spectrum.
We counsel clients on how to minimize legal risk in sensitive industries when utilizing and developing AI and in marketing such products to government customers. Doing business with the US government, however, poses unique challenges due to the complex constellation of laws and regulations that govern the awarding of government contracts and the frequency with which suppliers must contend with investigations into procurement practices and the use of federal funds. WilmerHale’s team has extensive experience advising clients on the full range of federal acquisition counseling and regulatory compliance issues, as well as representing clients in some of the most notable investigations and litigation matters arising from government contracts. Our team includes lawyers who have worked at the highest levels of government, including a former general counsel of the Department of Defense and the Central Intelligence Agency, a former general counsel to the Director of National Intelligence, several former senior DOJ attorneys and prosecutors, and a former general counsel of the Senate Armed Services Committee.
Public Policy and Legislative Affairs
WilmerHale’s premier public policy, legislative affairs and regulatory team has a wealth of experience helping technology companies navigate the complex and ever-changing landscape of policy and legal issues in Washington DC, including antitrust, consumer privacy, content moderation and trade. We are similarly situated at the forefront of shaping policies that impact the development and implementation of AI technologies. Our successes on behalf of our clients are driven by the abiding bipartisan relationships that we have built across all branches of government and the ability to utilize the experience of a full-service law firm. When clients face complex issues, we develop and implement multibranch strategies and solutions that help them move forward successfully with their corporate goals and commercial endeavors.
Learn more about the WilmerHale Public Policy and Legislative Affairs Practice.
WilmerHale is the go-to firm for companies facing high-stakes investigations by lawmakers focused on the commercial and institutional use of AI and other advanced analytics technologies. We have guided prominent clients through significant congressional probes into AI technologies, platforms, products and services, including investigations focused on antitrust and competition, data privacy and cybersecurity issues. Our work has included responding to informal inquiries and formal committee requests and subpoenas, managing discovery, drafting testimony and guiding executives through intensive preparation for high-profile public hearings.
Learn more about the WilmerHale Congressional Investigations Practice.
AI is rapidly transforming the legal landscape, and arbitration is no exception. Our firm recognizes this trend and is dedicated to leveraging the potential of AI within the arbitration process. By harnessing AI-powered tools, we can streamline arbitration procedures, enhancing efficiency and expediting case management. Despite the vast potential benefits of AI in arbitration, this technology also involves risks, such as bias, errors and opacity. As the latest studies have revealed, the accuracy of available AI-powered tools is still a work in progress, and bias could be inadvertently introduced through the process of training these tools. Hence, we prioritize thoughtful risk assessment and the development of robust safeguards before integrating AI into arbitration.
WilmerHale intends to remain at the forefront of AI developments, exploring the transformative possibilities of AI in improving the arbitration process. We firmly believe that AI has the power to revolutionize dispute resolution, and we are committed to employing this technology where appropriate to empower our clients in achieving their goals.
Learn more about the WilmerHale International Arbitration Practice.