What You Need to Know about AI, Privilege and Invention Disclosure

The use of large language models (LLMs or AI) has become an almost unavoidable part of life since the release of ChatGPT a few years ago.

As these tools continue to become further embedded in workplaces and our personal lives, they will have significant impacts on the privilege of legal advice between you and a patent attorney and can even result in you accidentally disclosing an invention to the public.

Privilege

Privilege is a legal shield that allows you to prevent the disclosure of confidential communications and/or documents. Maintaining privilege on important pieces of information can be critical in litigation or negotiations with third parties.

While privilege is traditionally thought to exist between a client and a solicitor, it also applies to you and your patent attorney.

The Patents Act 1990 provides privilege for communications and documents prepared, between a patent attorney and their client, for the dominant purpose of providing intellectual property advice. In essence, so long as the patent attorney is providing you with advice that is relevant to patents or designs, then any communications and/or documents sent between you and the patent attorney are privileged.

Waiving Privilege

While privilege is a powerful tool, it can be lost. The Evidence Act 1995 and Mann v Carnell (1999) 201 CLR 1 require that if a person acts in ‘a manner that is inconsistent with maintaining confidentiality’, that privilege will be lost.

To give you a blatant example, posting legal advice provided to you by a patent attorney in a public space online would almost certainly lead to a loss of privilege and allow third parties to use any of the information in this legal advice against you.

Use of Large Language Models Can Lead to a Waiving of Privilege

Most commonly used LLM providers, OpenAI, Google and Anthropic, provide at least some form of free or discounted tier for use of their LLMs. In exchange for use of their LLMs for free, or at a discounted rate, you are typically agreeing to sharing your data with the LLM provider.

The recent cases of United States v. Heppner (S.D.N.Y. Feb 17, 2026) and Munir v Secretary of State [2026] UKUT 81 found that uploading confidential legal documents to LLM tools that share your data resulted in a permanent waiving of privilege.

While these are not Australian cases, we expect that Australian Courts would take a similar approach.

We also believe that Australian Courts will extend this logic to self-disclosures; if you upload confidential details of your inventions to LLMs that share your data, then that may be considered a self-disclosure of your invention.

Practical Examples

Discussions of privilege and self-disclosure can be abstract, so the following examples may guide you to safer use of LLMs. Nonetheless, we urge everyone to limit their use of LLMs with confidential information until the Australian Court system has definitively outlined where the dangers to privilege and invention self-disclosure lie.

(1): Uploading advice to a secure LLM

This could occur safely, if using an LLM governed by a confidential enterprise agreement or an LLM that only runs on local hardware. We expect that if the original advice is privileged, then that original advice will retain privilege in such a situation.

(2): Generally discussing legal matters with an LLM

Privilege can only be granted between a human patent attorney and a client. Any information you provide to an LLM or output from the LLM will not be provided privilege.

This can represent a significant risk as any discussion you have with an LLM could be used against you in litigation.

(3): Uploading provisional patent specification or invention details to an LLM

If you discuss your invention, refine your inventive concept or upload a provisional patent specification that has not yet been filed with IP Australia, then an Australian Court may view this sharing of data with an LLM as a self-disclosure of your invention.

This can represent a significant risk that could lead to invalidation of your patent application.

Further Advice

The use of LLMs can lead to significant risks for the privilege of legal advice provided to you or to the validity of your patent applications.

If you have further queries about the drafting and prosecution of patents, infringement proceedings, recent patent law developments in Australia, or how the use of LLMs could compromise your legal position, please contact MBIP via email on mail@mbip.com.au or via our online form. Our experienced team of attorneys would be glad to assist.

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