Think it, Build it, Shhhh...ip it! Managing trade secrets in the context of agile technology development

Abstract

Over the past two decades, agile methodologies have become a mainstay of software development practices at companies large and small. With their focus on short development cycles and autonomous, self organizing teams, agile technology development presents a significant challenge for the effective management of trade secrets. At the same time, many of the intellectual assets of highest strategic importance to agile technology companies — e.g. proprietary algorithms, machine learning models, unique datasets, and valuable data derived insights — cannot be registered as patents, trademarks or designs. (Nor can they be effectively claimed and protected via copyright.) Rather, if the company is to retain any intellectual property based control position in relation to these assets, they must be managed and protected as trade secrets. Via a systematic literature review and multiple case study research design, this study examines this tension and seeks to contribute to the field by providing research based guidance on how agile technology companies may incorporate trade secret protection procedures without undermining the speed and autonomy of their product development practices. The findings demonstrate that, by relying on the inherent flexibility of the laws governing trade secrets (specifically the contextual requirement of “reasonable steps”), it is possible to manage the tension between agility and robust trade secret protection. In doing so, agile technology companies should take a measured approach that focuses on building awareness and trust among individual employees so as to frame trade secret management as a cross functional task and enable positive behaviors. The findings of the study can be used to inform the development of trade secret protection procedures that enable technology companies to continue to develop products with agility while using trade secrets to secure practically effective and legally defensible intellectual property based control positions for their most strategically important assets.