Artificial Intelligence (AI)

Winston’s AI-focused attorneys feature lawyers and technologists across all our core practices with experience in both the application of AI in providing legal services and counseling clients on its use. We draw on our experience to monitor legal and technological developments in the sector to help clients meet a wide range of needs such as:

• Drafting policies and procedures to leverage AI and integrate it into business workflow
• Providing education on AI’s benefits and risks, and assisting in managing related business and legal issues
• Tracking regulatory developments relating to AI to ensure our clients’ policies and practices incorporate regulatory requirements and guidance
• Providing practical guidance on integrating these developing technologies into legal departments while meeting industry ethical standards

Our Intellectual Property (IP) and Privacy teams work closely together to counsel clients in building, protecting, and commercializing proprietary AI technologies and data; the use of third party or open source AI technologies and data; and the implications that these activities may have under privacy laws. This comprehensive approach enables our clients to leverage the benefits of AI innovation while mitigating potential legal risks and ensuring compliant practices within evolving legal frameworks.

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With AI development occurring at an unprecedented pace, businesses integrating AI solutions must be vigilant in adhering to the evolving regulatory frameworks governing this transformative technology. Our attorneys are available to help clients not only harness the full potential of AI but also operate within the bounds of existing and developing international laws and regulations, including:

• Regulatory laws (e.g. U.S. Executive Order on AI, EU AI Act)

• Ethical guidelines (e.g. United Nations Principles for the Ethical Use of AI)

• Privacy regulations including health care privacy laws (e.g. HIPAA)

• Labor and employment laws (NYC’s AI Employment Law)

We routinely help clients protect and commercialize their IP assets and provide due diligence on complex technology and IP transactions. We also provide risk management counseling in connection with AI open source software agreements. Our team focuses on licensing, copyright, and other IP matters, and includes attorneys with technical backgrounds and practical experience in computer programming. On behalf of companies licensing their AI IP or contracting with AI software we:

• Negotiate and draft IP licenses and transfer agreements, including the scope of use, royalties, and duration
• Provide strategic guidance on optimal structures for IP transactions
• Evaluate IP portfolios and related due diligence activities in connection with commercialization and corporate transactions
• Document due diligence to understand safeguards that a third-party company has in place to mitigate risks
• Review IP provisions of internal Service Agreements/Terms and Conditions
• Negotiate and review AI contracts and service agreements, including updating vendor master services agreements and engagement letters to address AI issues

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As AI technology develops, protecting associated IP assets is increasingly important. Our nationally recognized IP attorneys, including those in the country’s technology hubs—Silicon Valley, San Francisco, and New York—provide clients with unmatched insights and experience at the intersection of technology and IP. This allows us to effectively navigate patent heavy districts throughout the country as well as handle cases before the International Trade Commission – Section 337. Further, as one of the premier copyright litigation teams in the country, we have handled hundreds of cases involving the defense of billions of dollars in liability and the recovery of massive awards for our clients. Our lawyers also have extensive experience prosecuting and defending significant matters involving trade secrets, confidential and/or proprietary information, restrictive covenants, and related issues.

We assist clients developing cutting-edge algorithms, machine learning models, and pioneering AI applications in the patent, copyright, trade secret, and trademark legal issues surrounding their use or invention of AI, such as:

• Authorship and ownership of AI-generated works
• Defense of claims related to the use or deployment AI in tools, products, and platforms
• Reviewing and writing user-indemnity clauses in Terms & Conditions
• Fair use issues
• Trade secrets

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Winston represents technology clients and clients who use technology in their core business applications in virtually every type of dispute that can arise from operating a business. As a litigation powerhouse, we offer deep bench strength and experience to handle complex disputes—through both litigation and arbitration or trial and on to appeal—across the full range of legal issues. 

At the core of our complex commercial litigation practice, we defend and prosecute contractual claims and related tort, fraud, and statutory actions arising from all types of business agreements—such as purchasing and licensing deals, trade secret and non-compete accords, among others. We represent clients in negotiating, interpreting, terminating, and—when necessary—litigating and arbitrating contracts involving competitors, distributors, customers, vendors, and myriad other parties and counterparties. We also have deep experience litigating matters involving claims of breach of non-compete and non-disclosure agreements that often involve related trade secret claims.

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Winston’s eDiscovery & Information Governance Practice is one of the United States’ largest and most experienced. Per The Legal 500 US 2022, “Winston has one of the most impressive e-discovery practices in the world.” As part of that practice, we assist our clients in designing litigation response programs that include whether and how to integrate technologies into the litigation and discovery process, including AI. We can help your organization evaluate newer AI technologies in a manner that reduces the tremendous costs of e-discovery and appropriately protects your confidential and trade secret information. To that end, we have designed, negotiated, and litigated best practices, protocols, and orders around the use of AI in litigation and arbitration to include: 

• Predictive classifiers, clustering, and conceptual algorithms
• Entity, sentiment, and visual analytics
• AI tools designed to facilitate and streamline the review of chats, e-mails, and other ESI, as well as to identify PII and privileged content

Our attorneys and technologies are currently evaluating a wide variety of generative AI tools to expedite the search, identification, and review of ESI. We are also involved in several efforts regarding thought leadership around the adoption and use of AI in the conduct of e-discovery and managed review.

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Winston takes a strategic approach to privacy and data security, integrating our cross-practice capabilities to help our clients protect their valuable data with proactive strategies. Our IP lawyers bring technical know-how to help our clients protect the technology, while our data-security team helps meet the challenge of applying best practices and reasonable security. In the AI sector, we provide clients with:

• Privacy and cybersecurity counseling to ensure compliance with the various domestic and foreign data protection and AI regulations
• Vetting and deployment of AI technologies, including guidance on data collection and algorithm training
• Development of data use strategies, such as the intellectual property implications of using customer data for artificial intelligence purposes.
• Implementation of HIPAA compliance frameworks in conjunction with the use of AI
• Development, negotiation, and execution of major contracts that implicate the use, sharing, disclosure, and safeguarding of personal information
• Defense against class actions and other privacy and consumer protection actions, including those resulting from data breaches

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Our Technology Antitrust Group combines the cross-practice and cross-office experience of our attorneys to assist AI clients and clients implementing AI in successfully navigating the dynamic convergence of technology, antitrust, and IP law. We advise on business strategy and transactions, help identify and mitigate litigation and enforcement risks, and provide vigorous representation in antitrust disputes—including unflinching trial and government advocacy. On behalf of clients we:

• Assist companies in developing new technologies while minimizing antitrust risks
• Provide antitrust counseling and training to companies in the use of AI to minimize risks
• Represent companies in antitrust litigations relating to the alleged anticompetitive use of technology
• Defend companies in antitrust litigations relating to the alleged anticompetitive use of data and purported data monopolies
• Represent companies in government antitrust/competition investigations in connection with the use of technology
• Deliver comprehensive merger and acquisition and transactional guidance tailored specifically to high-tech markets and products

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Our transactional attorneys represent established and emerging AI companies, leading financial institutions, private equity and investment funds, funding sources, and investors in cross-border acquisitions, divestitures, and mergers to joint ventures, spinoffs, and distressed acquisitions. We also serve as counsel to boards and special committees and advise issuers and underwriters in connection with initial public offerings (IPOs) and follow-on offerings. Recent transactions in the AI sector include:

• Jumio’s US$150M Investment from Great Hill Partners
• Ark Global Acquisition Corp.’s Closing of Upsized US$345M IPO
• Tempus Labs’ US$200M Series G-2 Financing
• ai Series B Round

Our transactional attorneys regularly work in tandem with our IP and Privacy attorneys on complex deals involving the acquisition or sale of AI technologies or in deals involving targets who use third party AI technologies in the operation of their businesses.

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