Protecting IP in an Agile Software Development Environment

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This is an excerpt from an article by Christopher George and myself appearing in the American Bar Association IP Section's Landslide magazine (July/Aug. 2015) pp. 34-41.  

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Introduction

Over the last decade, there has been a movement among the software developer community to employ some form of “agile development” rather than the traditional software development methodology. The belief is that these agile methodologies lead to higher quality software and faster development cycles. More recently, the implementation of agile software development has transitioned not only from small startups to large companies, but also from enterprises developing noncritical, consumer apps to those developing software for medical, aviation, military, and financial systems, where the presence of errors pose high human or economic risk. With these transitions, intellectual property (IP) law practitioners must adopt their traditional lawyering approaches to capturing and securing IP (especially patent) rights. A failure to recognize and adapt to the agile software development environment will result in a failure of IP law practitioners’ essential job function—helping to create or sustain client profitability and enable long-term business growth.

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Conclusion

More and more clients from enterprises of all sizes and from varying industries are producing (and will begin to produce) software using agile development methodologies as they seek to produce higher-quality software faster. While the adoption of these agile approaches has no effect on IP rights themselves, it does affect how IP practitioners should counsel their clients. That is, IP rights are IP rights, and the basic requirements for their registration and enforcement obviously remain unchanged. But, if the First Commandment of Business—“know thy customer”—is a guide, IP practitioners should educate themselves about the agile methodologies their clients use to innovate, and be more nimble in their approach to counseling and securing IP rights for such agilist clients.











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