Trade Secrets Are Not Enough

A broad-based IP protection policy establishes your innovation sandbox.

Like many industries where there are a significant number of new entrants, many emerging aerospace companies seem to approach intellectual property in a very focused manner that just skims the surface of available protections. This kind of approach is seen a lot in software-related industries where the magic behind a company’s product is computer code that the end user cannot access. While these sorts of products lend themselves to the gossamer protections of trade secret law, patent and copyright law also provide additional product protections and add value. Many once-young software and internet-related companies such as Google have come to recognize the value of patent protection for their product offerings. Google’s patent portfolio has helped establish its market dominance in mobile computing and ward off attacks from other companies. Some up and coming technology companies, like Facebook, are currently experiencing the pain of a narrowly-focused intellectual property protection policy. They have found that defending their innovations in a Spartan fashion against legions of their competitor’s patents is not the best position to be in.

Adopting an intellectual property protection policy that is broad-based, relying on more than simple trade secret law, places both large and small companies on firm legal ground, adds value to the company from an outside investment point of view, and recognizes that different technological solutions call for different IP approaches.

Trade secret protection is based on confidentiality. Its protection is limited in scope and focuses on preventing others from unfairly learning of a secret if you have taken reasonable steps to protect the secret. Trade secret law does not prevent others from reverse engineering something or independently creating your development.

A la carte IP protection is a bit like forgetting to wear pants. Image courtesy Improv Everywhere.

There are two main reasons why emerging technology companies, and aerospace companies in particular, should adopt broad-based intellectual property protection policies which take advantage of patent, trademark, copyright, and trade secret protections, instead of a la carte selection of only one or two types of protection.

First, a comprehensive IP policy establishes a company as the gatekeeper for its particular areas of technological expertise and innovation. For example, if your space launch services company spends years developing a novel aerobraking system for reentry vehicles, you generally want to capitalize on your invention! Your aerobraking system is unique but, like many space-related technologies, it is probably easy to determine how it operates by watching it in action. Securing patent protection would be wise in this instance because you, as most Americans, would like to make money off of your development and a patent on your aerobraking system allows you to control who copies your design. A patent shows the industry the shape and nature of the sandbox you play in and lets you decide who else can come in and play. You can choose to let other people in for a large royalty, a small royalty, no royalty, or you can simply decide that no one else can play in your sandbox! From the prospective of companies seeking outside investment, a broad IP protection policy is essential because it shows investors that the individuals at the company are not simply starry-eyed dreamers, they are people who will protect any investment made in their company.

The second reason emerging technology companies should adopt a broad-based IP protection policy is tied to the types of development companies perform. Different problems require different technological approaches in order to be solved. Because one develops different technologies to tackle different specific problems, it makes sense that the associated intellectual property protection should be tailored to each unique solution! Where a solution to a problem would be apparent or easy to puzzle out based on a visual inspection, patent protection is the best fit for continuing a company’s hard-earned competitive edge. But if a solution is largely software based (i.e. an observer cannot determine the method of operation based on visual inspection), trade secret protection may be a more appropriate fit! In addition to offering the best fit solutions for their customers, emerging aerospace companies should ensure that they are equipping themselves with the most appropriate tools and protections available, including IP policies designed to recognize the wide variety of techniques and solutions companies develop while building the next generation of spacecraft.

Happy creating!

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