Patent Documents and the Cloud: What Developers Need to Know
The risk isn't whether you use cloud tools for patent work. It's how long your unfiled invention sits exposed on a third-party server before it has a filing date.
Three independent legal frameworks govern how pre-filing patent documents can be stored and processed. Each creates a different type of liability. Together, they define a risk spectrum where the key variable is time: how quickly can you move from disclosure to filing?
Most developers already host code on GitHub or GitLab. That code is implementation. What the legal frameworks below govern is different: invention disclosures, draft claims, and patent analysis that explicitly identify what is novel. Source code does not spell out your patent strategy. A scanner's output does.
This article explains each framework, cites the relevant statutes and case law, and describes what the right architecture looks like for each phase of the patent workflow.
Last updated: February 2026. This page is informational only and not legal advice. Consult a patent attorney for your specific situation.
The Risk Spectrum
Not all cloud usage carries the same risk. The exposure window matters.
AI runs on your machine. Source code never leaves your environment. No API calls, no cloud processing, no third-party disclosure.
Generate the PPA and file within hours. The invention touches cloud infrastructure briefly, then has a filing date. The exposure window is compressed to its minimum.
Unfiled invention sits on third-party servers for days, weeks, or months with no filing date. Maximum exposure to every risk described below.
Three Legal Frameworks
Each of these frameworks independently creates liability for mishandling pre-filing patent documents. Each treats prolonged cloud storage differently than brief, purpose-driven processing.
Foreign Filing Licenses
35 USC 184 / 37 CFR 5.11
Transmitting technical data about a U.S.-made invention to foreign servers may require a license. Without one, the resulting patent can be invalidated.
Export Controls
EAR / ITAR
The "deemed export" doctrine treats data on foreign servers as an export event. Criminal penalties reach $1 million per violation and 20 years imprisonment.
Attorney-Client Privilege
Heppner (SDNY, Feb 2026)
A federal court ruled that documents processed through consumer AI tools are not protected by privilege. Enterprise tools with contractual confidentiality may be treated differently.
Foreign Filing Licenses
Under 35 USC 184, a Foreign Filing License is required before seeking patent protection abroad for inventions "made in" the United States. The statute covers both filing applications and exporting technical data.
The critical regulation is 37 CFR 5.11, which extends the license requirement beyond filing to cover the export of technical data abroad for purposes related to patent preparation. This is the provision that creates cloud risk.
How cloud storage triggers it
When pre-filing patent documents are uploaded to a cloud service, data may be transmitted to, processed on, or stored in servers outside the United States. AWS operates data centers in more than 20 countries. While customers can select regions, multi-region replication, CDN caching, and backup systems can move data across borders in ways that are not always transparent.
If technical data about an unfiled U.S. invention reaches a foreign server without a license, that transmission may violate 37 CFR 5.11. The user bears the compliance burden.
| Violation | Consequence | Statute |
|---|---|---|
| Filing abroad without license | U.S. patent invalidated | 35 USC 185 |
| Willful violation | Up to $10,000 fine or 2 years imprisonment | 35 USC 186 |
| Retroactive license | Available only for "error without deceptive intent" | 35 USC 184 |
Brief, purpose-driven cloud processing on U.S.-only servers with same-day filing compresses the exposure window significantly compared to indefinite storage. The risk is not binary, but the exposure duration matters.
Export Controls and the Cloud
Two federal regulatory frameworks govern the export of controlled technology. Both apply to pre-filing patent documents containing controlled subject matter.
| Regulation | Agency | Max Criminal Penalty |
|---|---|---|
| ITAR (International Traffic in Arms Regulations) | State Dept (DDTC) | $1M fine or 20 years, or both |
| EAR (Export Administration Regulations) | Commerce Dept (BIS) | $1M fine or 20 years, or both |
The "deemed export" doctrine
Under export control law, placing controlled data on a server in a foreign country is treated as an export to that country. Allowing a foreign person in the U.S. to access that data is treated as an export to their country of nationality. The "published information" exception only applies after a patent application is published. Pre-filing documents are not public, so they remain subject to export controls.
Why the BIS cloud carve-out fails for AI
The Bureau of Industry and Security provides a limited exception for cloud transmissions, but it requires:
- End-to-end encryption before crossing any national boundary
- Data remains encrypted while in transit between security boundaries
- The cloud service provider must not have access to decryption keys
- FIPS 140-2 compliant algorithms (minimum AES 128-bit)
The risk scales with duration and server location. Same-day processing on U.S.-only servers is a fundamentally different risk profile than weeks of storage on globally distributed infrastructure.
The Privilege Question
In February 2026, Judge Rakoff of the Southern District of New York ruled that 31 documents generated using a consumer AI tool were not protected by attorney-client privilege or work product doctrine. Three holdings from the Heppner decision:
- AI is not a lawyer and cannot establish an attorney-client relationship.
- Consumer AI tool terms of service permit use of inputs for training and disclosure to third parties, which is inconsistent with confidentiality requirements.
- Work product doctrine failed because the documents were generated independently, not at counsel's direction.
Consumer vs. enterprise tools
The court drew a critical distinction. Consumer AI tools, whose terms permit training on inputs and third-party disclosure, waive privilege. Enterprise AI tools with contractual guarantees of confidentiality, no training on inputs, and controlled data handling may be treated differently. The ruling leaves room for enterprise-grade tools that respect the confidentiality boundary.
What Patent Attorneys Say
We spoke with patent attorneys about their experience with AI tools. Both independently identified cloud disclosure as the primary barrier to adoption.
That's what stopped me from using these LLMs to draft the specifications.
Patent attorney, formerly Perkins Coie, on why he won't use AI for unfiled inventions. He suggested a "time-window strategy": minimize the gap between disclosure and filing to reduce exposure risk.
Keep the documents on local machines. Sandbox approach. Don't store patent documents in cloud unless you know exactly where those servers are.
Patent attorney, boutique firm, who raised foreign filing license risk unprompted during consultation.
The adoption gap
The gap between general legal AI adoption (79%) and patent attorney regular use (15%) is the largest in any legal specialty. The reason is specific to patent practice: invention disclosures contain the most sensitive pre-filing technical information. What would change adoption? Tools that match the right architecture to each phase of the workflow.
The Ethics Landscape
The American Bar Association's Formal Opinion 512 (July 2024) established the first national framework for generative AI in legal practice. Lawyers must understand AI tool capabilities and limitations, secure informed consent before using client data in AI tools, and boilerplate consent in engagement letters is not adequate.
| Jurisdiction | Guidance | Key Requirement |
|---|---|---|
| ABA | Formal Opinion 512 (2024) | Informed consent required for client data in AI tools |
| Oregon | Opinion 2025-205 (2025) | Informed consent + anonymize/redact for open models |
| North Carolina | FEO 1 (2024) | Inform clients when confidential info processed by AI |
| Pennsylvania | Court rules | Mandatory disclosure of AI use in court submissions |
| USPTO | April 2024 guidance | "Relying on AI accuracy" not a "reasonable inquiry" |
The Right Architecture for Each Phase
The legal frameworks above don't demand a binary choice between cloud and local. They define a risk spectrum. The right approach matches the architecture to the phase of the patent workflow.
Discovery Phase
Local-First
- Scanning source code for patentable concepts
- AI model runs entirely on the developer's machine
- No data transmitted. No API calls. No cloud.
- Zero disclosure risk. Zero compliance questions.
- Your code may already be on GitHub. What local scanning protects is the output: a document identifying which concepts are novel and patentable. That is the sensitive document.
Best for: Initial scanning, invention identification, internal assessment
Filing Phase
Fast Cloud
- Generating the provisional patent application
- Cloud processing for quality (frontier models produce better output)
- Generate and file same day. Compress the exposure window to hours.
- Enterprise-grade: no training on inputs, U.S.-only processing
Best for: PPA generation, claims drafting, filing preparation
Local-first scanning eliminates risk at the discovery stage. Fast, purpose-driven cloud processing with same-day filing minimizes risk at the filing stage. The worst outcome is an unfiled invention sitting on a third-party server with no filing date in sight.
Frequently Asked Questions
Does this apply to patents that have already been filed?
No. Once a patent application is filed with the USPTO, the invention has a filing date and the risk profile changes entirely. The foreign filing license clock, export control exposure, and privilege concerns described here apply specifically to pre-filing documents: invention disclosures, draft applications, and internal technical assessments that have not yet been submitted to any patent office.
How fast does "same-day filing" need to be?
There is no statutory time limit that defines "safe." The principle is minimizing exposure. A few hours of cloud processing that ends with a filed application is fundamentally different from days or weeks of cloud storage without a filing date. One patent attorney we spoke with suggested a weekend strategy: disclose to the AI tool after the patent office closes on Friday, file by Monday morning. The shorter the window, the lower the risk.
What about encrypted cloud storage?
The BIS export control carve-out requires that the cloud provider cannot access decryption keys. AI tools that process your data must decrypt it to do anything useful. Encrypted storage and encrypted processing are different things. If the tool can read your patent disclosure, the encryption argument does not apply to the processing phase. For AI patent tools, speed of processing matters more than encryption at rest.
Can I use consumer AI tools (ChatGPT, Claude) for patent work?
After the Heppner ruling, consumer AI tools risk privilege waiver because their terms of service permit training on inputs and disclosure to third parties. Enterprise agreements with no-training clauses and contractual confidentiality are the safer path for any cloud-based patent work. For the discovery phase (scanning code for patentable concepts), local tools avoid the privilege question entirely.
Best practice: Use local tools for discovery and scanning. If using cloud tools for filing, choose enterprise-grade services with contractual confidentiality and minimize the time between disclosure and filing.
My code is already on GitHub. Why does local-first scanning matter?
Source code on GitHub is implementation: thousands of files without any identification of what is novel or patentable. A private repo does not spell out your patent strategy. The scanner creates a different, more sensitive document: one that identifies inventive concepts, maps claim boundaries, and structures the information for patent filing. That document is what triggers the foreign filing license, export control, and privilege frameworks described above. GitHub hosting your code does not mean any third party holds your patent analysis. Local scanning ensures that analysis never leaves your environment. (Public repos create a separate question under 35 USC 102's disclosure provisions, but that is distinct from the cloud processing risks covered here.)
Sources
Foreign Filing Licenses
- 35 USC 184: Filing of Application in Foreign Country
- 35 USC 185: Patent Barred for Filing Without License
- 37 CFR 5.11: License for Export of Technical Data
- MPEP Section 140: Foreign Filing Licenses
- IPWatchdog: Export Control Issues in U.S. Patent Prosecution (May 2024)
Export Controls
- BIS: EAR Part 734 Scope of the Export Administration Regulations
- Braumiller Law: Storing Export Controlled Data in the Cloud
- AWS: Global Export Compliance
Attorney-Client Privilege and AI
- Debevoise: Judge Rakoff AI Privilege Ruling (Feb 2026)
- Gibson Dunn: AI Privilege Waivers SDNY Ruling
- Morgan Lewis: When AI Meets Privilege (Feb 2026)
Ethics Guidance
- ABA Formal Opinion 512: Generative AI Tools (July 2024)
- Oregon Bar Opinion 2025-205 (Feb 2025)
- North Carolina: 2024 Formal Ethics Opinion 1
- Justia: AI and Attorney Ethics 50-State Survey
USPTO Guidance
- USPTO: Guidance on AI-Based Tools in Patent Practice (April 2024)
- Skadden: USPTO AI Tools Guidance Analysis