The term "Trade Secret" probably makes you think of a famous secret recipe: Irn Bru if you are Scottish, Coca-Cola in the rest of the world. But most businesses have trade secrets hiding in plain sight. Even the most banal process can be a trade secret, especially those embedded in software. This includes the way a platform scales, the specific algorithms built into the source code, or the architecture of your databases.
Most organizations take this for granted—until they find their intellectual property has been stolen or leaked. As an Expert Witness, I frequently see the commercial fallout from these common scenarios:
- A former employee takes code or repository histories with them to a competitor.
- An errant client quietly replicates a confidential process.
- Organizations fail to respect software licensing agreements.
- Partners share proprietary code outside their agreed remit.
- External contractors reuse bespoke, proprietary algorithms for other clients.
- Developers inadvertently expose sensitive logic to public code repositories or generative AI.
- Competitors manage to work their way past your security.
While jurisdictions across the US, the UK, and France handle the specifics differently, the basic concept is universal: the method in question is not generally known, and it holds economic value because of that. However, the way trade secrets are handled in court is changing. With increasingly complex technical cases, the identification of litigated trade secrets is moving much earlier in the process. If a company is filing a lawsuit claiming theft, they must know exactly what they are accusing the other party of stealing.
This means Expert Witnesses need to be engaged earlier to assist in the preparation of complaints. We can identify the technical trade secrets, validate the client's concerns, and translate complex technical issues into clear commercial realities for both the legal team and the court.
