There are incentives to create new inventions outside of patentability.

Yet patents are not the only means of promoting product commercialization. Newly approved drugs and biologics, for example, receive a period of market exclusivity during which time no other party can sell a generic or biosimilar version of the product. Newly approved biologics, for instance, receive a twelve-year exclusivity period in the United States. Because of the length of time it takes to get a new biologic approved, the market exclusivity period may exceed the term of any patent an originator company has on its product. A heightened bar to patentability may lead to greater reliance on alternative forms of intellectual property protection such as market exclusivity, prizes, grants, or tax incentives.223 With regards to disclosure, without the ability to receive patent protection, owners of inventive machines may choose not to disclose their discoveries and rely on trade secret protection. However, with an accelerated rate of technological progress, intellectual property holders would run a significant risk that their inventions would be independently recreated by inventive machines. Depending on the type of innovation, industry, and competitive landscape, business ventures may be successful without patents, and patent protection is not sought for all potentially patentable inventions.224 In fact, “few industries consider patents essential.”225 For instance, patents are often considered a critical part of biotechnology corporate strategy, but often ignored in the software industry.226 On the whole, a relatively small percentage of firms patent, even among firms conducting R&D.227 Most companies do not consider patents crucial to business success.228 Other types of intellectual property such as trademark, copyright, and trade secret protection, combined with “alternative” mechanisms such as first mover advantage and design complexity may protect innovation even in the absence of patents.229