Diversifying Your IP Strategy: Key Tactics for a Well-Rounded Portfolio
In today’s competitive and innovation-driven economy, protecting intellectual property (IP) is no longer just about securing utility patents. A well-rounded IP strategy that incorporates multiple forms of IP, such as trade secrets, design patents, trademarks, and trade dress can help companies defend their market position, increase valuation, and foster long-term growth. A multi-layered approach tailored to your business needs maximizes protection while minimizing risk.
Trade Secrets: Secure Your Competitive Edge
Trade secrets offer protection for valuable information that is not publicly known and provides a business advantage. This includes algorithms, manufacturing techniques, customer data, and many other types of information. Unlike patents, trade secrets require no registration and can last indefinitely—so long as they remain confidential.
Deciding whether to protect an invention as a trade secret or through a utility patent involves several considerations. If the product can be reverse engineered, a trade secret may be difficult to maintain. On the other hand, if confidentiality is feasible—such as with server-side software or internal processes—a trade secret can offer lasting value without public disclosure.
A strong trade secret strategy involves legal safeguards like non-disclosure agreements (NDAs), access controls, and clear documentation. Companies should also educate employees and have policies in place to prevent the unintentional use of third-party trade secrets. A strong trade secret policy can put your business in a position to react quickly and effectively to theft of its trade secrets, while avoiding landmines presented by third party trade secrets.
Design Patents: Protecting What Makes a Product Unique
While utility patents protect the way a product works, design patents protect the way a product looks. This can include the shape of a product, surface ornamentation on a product, graphical user interfaces (GUIs), and even animations.
Design patents are relatively low-cost and typically faster to issue than utility patents. They’re particularly valuable when a product’s visual appearance contributes to consumer appeal or brand identity. Moreover, design patents can be easier to enforce than trade dress, since design patent infringement does not require proving acquired distinctiveness or consumer recognition.
As an example, a company producing wireless headphones might patent the shape of the device or a portion of the device, the packaging of the device, or icons and animations used in its companion app. Design patents help deter knock-off products and allow for recovering damages based on infringer profits.
Recent legal developments—such as the Federal Circuit’s decision in LKQ v. GM—have aligned the design patent obviousness standard more closely with that of utility patents. This change underscores the importance of working with experienced counsel when crafting a design patent strategy to ensure robust protection.
Trademarks and Trade Dress: Building and Defending Brand Identity
Trademarks protect the words, symbols, colors, or sounds that identify the source of goods or services. Trade dress extends this protection to the overall look and feel of a product or its packaging—provided it serves as a source identifier and is non-functional.
Unlike patents, trademark and trade dress rights last as long as the trademark or trade dress is being used in commerce, making them a cornerstone of brand longevity. However, trade dress protection generally requires that the design has acquired distinctiveness—meaning consumers associate the appearance with a specific source—before it can be protected, whereas a design patent can be applied for before it has been used.
A company does not have to choose between applying for a design patent or a trade dress registration. It can obtain both. When used together, design patents and trade dress can offer complementary protection. A design patent provides exclusive rights early in a product’s lifecycle, while trade dress can extend that protection as brand recognition grows. For example, the shape of a headphone earcup might be initially covered by a design patent and later registered as trade dress once it becomes known in the marketplace as a product of your company. Having both forms of protection expands opportunities for enforcement.
A Holistic Approach to IP Protection
It’s possible to have an IP portfolio that is as innovative as the products it protects. Consider a pair of wireless headphones with a corresponding app. The noise cancellation algorithm could be safeguarded as a trade secret. The sleek form factor and interface icons might be protected with design patents. Over time, the overall appearance—such as a distinctive earcup shape, red cabling or distinctive packaging—could gain trade dress protection. Harnessing the available IP tools in a manner tailored to the needs of your business reduces risk, deters imitators, and builds lasting brand value.