Patents don’t improve cybersecurity – narrow market

Even if national cybersecurity inventions were kept patentable, exclusive rights would not be a prudent innovation policy instrument for incentivizing them. Patents (in theory) represent an intrinsic tradeoff: they enhance incentives to invent, but at the expense of providing disclosure to the public.267 In the context of national cybersecurity inventions, the benefits of patent protection are nearly nonexistent since they can be commandeered by the government and the costs of losing patent protection would be highly deleterious to potential national cybersecurity inventors.26S On the benefits side, patents resolve market failures by granting patentees a right to exclude others from using their inventions, thus shoring up incentives to invent, assuming that, however, those rights will not be taken by the government. 269 Thus, although patents enable market incentives to incentivize inventors to invent, they do not create market incentives.270 Ultimately, it is the market demand that drives the generation of patented technologies.

The patent paradigm fails to translate to national cybersecurity inventions, for almost by definition, there is relatively little market demand for such innovations. That is, assuming the government is the main potential purchaser of national cybersecurity inventions and there is not a private sector market for them, patenting of national cybersecurity invention would be unlikely to generate significant revenues, thus defeating incentives for invention. Additionally, even if exclusive rights provided significant financial return on national cybersecurity inventions, such incentives are not particularly germane to them. As noted earlier, the motivations underlying national cybersecurity inventions are generally economic only when the invention would be known to advance a corporate cybersecurity interest. In particular, the challenge of determining whether a cybersecurity innovation benefits only corporate interests provides ample motivation for society to consider alternative innovation policies aside from the patent system. Furthermore, profit motives are not the driving force for creating technological solutions for achieving national cybersecurity. Moreover, exclusive right on national cybersecurity innovations are plagued by difficulties of patent enforcements, which is more difficult than other technologies. National cybersecurity inventions are subject to government patent use, which allows the government to use patented inventions through a taking of a patent license.271 Even if national cybersecurity inventions were subject to exclusive rights, patentees would face significant challenges in bringing enforcement actions against the government, 232 which further depresses incentives to patent national cybersecurity inventions in the first place.