Innovate Articles

Beyond Patents: Reframing Your IP Practice for Defense Contractor Clients

Linda Kennedy

Many young IP lawyers begin their practice fluent in a familiar framework: patents, trademarks, copyrights, and trade secrets. That framework serves most commercial clients well. It emphasizes ownership, validity, and enforcement. These are the traditional pillars of intellectual property practice.

When a new client is a defense contractor, however, that framework can quickly feel incomplete.

For defense primes and subcontractors, the intellectual property that most directly affects contract performance, competitiveness, and long-term value is often not a patent portfolio or a brand strategy. More often, it is technical data, computer software, and the rights associated with them under government contracts.

This distinction matters. Lawyers who approach defense-industry clients with a patent-centric mindset risk overlooking the IP licensing issues that drive outcomes in that industry. For young IP lawyers, recognizing and adapting to this difference early can meaningfully shape both client relationships and career trajectory.

The Patent-Centric Model—and Where It Falls Short

Traditional IP training focuses on exclusionary rights: who owns the IP, whether it is valid, and how it can be enforced. In many commercial settings, that focus is appropriate. A patent blocks competitors, a trademark protects goodwill, and a trade secret lives or dies by secrecy.

Defense contracting operates differently. Generally, the most important IP questions center on use rights—who may use the IP, for what purposes, and under what conditions. Those answers are usually found in a combination of licenses embedded in contracts, particularly under the FAR and DFARS.[1]

This difference is reinforced by doctrines unique to government contracting. For example, under the government’s authorization and consent framework, contractors may be authorized to use third-party patented technology in performing a government contract even where that use would otherwise constitute infringement.[2] In such cases, the patent owner’s remedy is typically against the government in the Court of Federal Claims, and often limited to compensation rather than an injunction against the contractor.[3]

For lawyers accustomed to viewing patents as strong exclusionary tools, this doctrine underscores a broader reality: in defense programs, patents may secure payment, but they do not always secure exclusivity.

As a result, IP risk in defense programs is less about infringement litigation and more about contract interpretation, data delivery, and lifecycle planning.

The IP That Actually Drives Defense Programs

In practice, the IP assets that matter most to defense contractors are technical data and computer software. These materials determine whether the government can sustain a system without the original contractor, modify or upgrade a platform, integrate it with other systems, or open future work to competition.

Patents may protect inventions embodied in a defense system, but they rarely control whether the government can operate, repair, or recompete that system. Technical data and software rights do. For both primes and subs, those rights often define long-term leverage far more than formal IP ownership.

Ownership Is Not the End of the Analysis

One of the most significant adjustments for lawyers new to defense IP is moving away from an ownership-centric mindset. In commercial practice, ownership is often the prize. In defense contracting, ownership frequently remains with the contractor, but the scope of the government’s license is what matters most.

Depending on development funding and contract terms, the government may receive broad or narrow rights in technical data and software. Two contractors may both “own” their IP yet face very different business realities based on the licenses they granted years earlier without appreciating the downstream consequences.

For young IP lawyers, this means learning to analyze IP clauses with the same rigor traditionally applied to patent claims or trademark registrations.

Why Technical Data and Software Are Different

Technical data and software are not static assets filed once and enforced later. They are created, modified, and delivered continuously over the life of a program. They are inseparable from performance and often jointly developed across multiple parties.

As a result, IP disputes in this space frequently arise years after contract award, during sustainment or recompete. Common problems include misaligned deliverables, inconsistent markings, over-delivery of proprietary material, or failure to segregate pre-existing IP. Each of these issues has legal consequences, even when that issue originates in engineering or program-management decisions.

Recent Department of Defense (DoD) Guidance

Government contracting is shifting toward commercial-first and non-FAR-based mechanisms, especially in defense contracting. In April 2025, an Executive Order directed the DoD to accelerate defense procurement and reform acquisition processes with an emphasis on speed, flexibility, and execution. It also instructed the DoD to use existing authorities to expedite acquisitions, including a first preference for commercial solutions and a general preference for Other Transactions Authority (OTA), where appropriate and consistent with law.[4] OTAs and other flexible acquisition vehicles matter for IP lawyers because they can allow parties to negotiate IP rights rather than simply accept standard FAR or DFARS IP clauses.[5]

That same month, the DoD issued its 2025 Intellectual Property Guidebook for DoD Acquisition. The Guidebook explains why IP planning should begin early, involve legal, contracting, technical, and program personnel, and be tied to acquisition planning, product support, and the government’s long-term needs.[6]

In 2026, the DoD implemented FAR and DFARS IP changes as part of the Revolutionary FAR Overhaul.[7] These and the broader overhaul aim to simplify the FAR, remove non-statutory rules, and make acquisition faster and less burdensome.

Practically, that means contracting officers are relying more on negotiated license terms, OTAs, commercial solutions, SaaS/cloud subscription models, access agreements, modular open systems, and lifecycle IP strategies rather than assuming standard FAR/DFARS clauses will solve data rights issues. The DoD’s 2025 IP Guidebook underscores this by emphasizing program-level IP strategies, industry partnership, and modern business models across the acquisition lifecycle.

What This Means for Young IP Lawyers

Advising defense contractors does not require abandoning traditional IP training, but it does require expanding it. Young lawyers in this space quickly learn that contracts are IP documents, that development history matters as much as formal ownership, and that effective IP counseling often requires collaboration with engineers and program teams.

Most importantly, defense-focused IP practice demands a lifecycle perspective. The most consequential IP issues may not surface at contract award, but years later, when a program is modified, sustained, or recompeted.

Conclusion

For defense contractor clients, intellectual property is less about exclusion and more about control, access, and long-term flexibility by way of licensing and contracting. Technical data and software sit at the center of that reality.

Young IP lawyers who recognize this shift will be better positioned to serve defense-industry clients and to build sophisticated, durable IP practices. In doing so, they may discover that the most consequential IP issues they handle are not found in patent claims or trademark registrations, but in the licenses and data rights that quietly determine how technology is used for decades to come.