Innovate or Perish: Managing the Enduring Technology Company in the Global Market

The Role and Value of Trade Secrets in Conjunction with Patents

Literature and presentations on IP strategies, IP valuation, and other IP topics almost always speak to patents and patent portfolios. However, doing so overlooks the fact that legal protection of innovation of any kind, especially in high-tech fields, requires the integration of more than one IP category (i.e., dual or multiple protection). Focusing on patents as the only measure of innovation or vehicle for protection and licensing ignores the fact that they are often valueless or inadequate for commercializing viable products, absent associated, collateral know-how protected by trade secrets.

Professor Jay Dratler, in his book Intellectual Property Law: Commercial, Creative, and Industrial Property,^[10] was the first one to “tie all the fields of IP together.” According to him, from former fragmentation by specialties, intellectual property rights (IPR) are now a “seamless web,” due to progress in technology and commerce.

^[10] Dratler, Jay. Intellectual Property Law: Commercial, Creative, and Industrial Property (New York: Law Journal Seminars Press, 1991).

Thus, we now have a unified theory in the IP world, a single field of law with subsets and significant overlap between IP fields. Several IPR are available for the same IP or different aspects of the same IP. Not taking advantage of the overlap misses opportunities or, worse, amounts to “malpractice,” according to Professor Dratler.

One IPR category, often patents, ...