The patent system subsidizes tech that harms others, and fails to internalize negative social costs

This Article argues that patent law exhibits a striking and overlooked asymmetry: while patents do much to internalize positive innovation externalities, they do very little to internalize negative innovation externalities. This Article refers to this underappreciated dynamic as patent law's externality asymmetry. As noted, patents exist for the core purpose of internalizing positive externalities. However, patents do almost nothing to internalize negative externalities. On rare occasions, the patent system has denied patents on "immoral" inventions (which may generate significant negative externalities), and a proliferation of patents can in theory slow progress in potentially harmful fields.12 In practice, however, patents allow inventors of social media, automation, and big data technologies to profit from their inventions while doing nothing to internalize these technologies' external costs. Notably, the patent system is massively subsidizing the invention of technologies that impose uncompensated harms on others.