Patents don’t improve cybersecurity - secrecy

One seemingly obvious incentive mechanism candidate for accelerating national cybersecurity innovation is to extend and promote exclusive rights over such technological inventions. For a variety of reasons, however, this Article argues against patents as such a potential incentive policy intervention. Exclusive rights in national cybersecurity inventions would not be a prudent innovation policy instrument, since the societal costs would be high relative to benefits. Patent law's conception of legally protectable innovation includes assigning individual exclusive rights in inventions, requiring robust disclosure to meet statutory patentability requirements, and emphasizing discrete patent claiming2S7—each of these facets of patents makes patented technologies to be tradable in markets.2Sg Thus, in the classic profit-driven formulation for innovation, markets motivate the generation of new technologies and help to disseminate them in the commercial marketplace, such as through licensing, mergers, and acquisitions.2S9 This model, of course, works best for technologies that are disclosed through quid pro quo, whereupon patent protection for inventions is attained in exchange for robust disclosure and patented technologies enter the public domain upon the expiration of the patent.260 This market-driven model does not work well for innovations with any semblance of national security concerns, which present risk of government intervention of some sort and inadequacies with the patent system.

Notwithstanding potential difficulties with patenting national security inventions, such as those established by the Invention Secrecy Act,261 other considerations should represent formidable obstacles to societal benefit from patenting of national cybersecurity technologies. As mentioned, many national cybersecurity inventions are not strictly patentable since they raise national security implications and are subject to govemment secrecy suppression. 262 Even if a national cybersecurity invention might technically meet patentability, it would likely be subject to government Datent use and subject the government to exemption from patent infringement.26 Further complicating attempts to patent national cybersecurity is the mysterious nature of the secrecy criteria, which the USPTO has noted is held under national security.264 As previously mentioned, the patent system is typically not meant to keep innovation secret, 26 S and in fact aims to disclose and disseminate inventions to the public through its quid pro quo.266 Unless the practice of the government commandeering national security inventions is made less secretive (which seems highly unlikely), the Invention Secrecy Act and government patent use will continue to defeat attempts to patent national cybersecurity inventions.