Patents don’t improve cybersecurity – misalignment is a net turn

The misalignment of the traditional view of the patent system with an expansive, modern critical infrastructure can be demonstrated with a graphical representation in Figure 3. As national cybersecurity technologies have increasingly connected data to the critical infrastructure, more of the critical infrastructure is becoming a public good. By contrast, the patent system, which scholars have commented provides incentives for physical creations, has remained rooted in providing a market-based innovation mechanism for the physical world. 274 The physicality in the form ofthe invention, whether by actual reduction to practice or constructive reduction to practice, suggests that the patent system historical basis for incentivizing innovation is in the physical world.2TS Commentators have noted that the patent system is ineffective for software-based and digital inventions, which obfuscate the underlying innovation and do not promote adequate incentives. 236 The misalignment of the proper innovation mechanism, with the changing nature of critical infrastructure, suggests that another type of innovation mechanism is more appropriate for fostering the developing national cybersecurity for critical infrastructure-2

Thus, the benefits of patent protection on national cybersecurity inventions would be mostly absent, and there would be a significant societal cost. Exclusive rights for national cybersecurity inventions would produce deadweight loss, which is deleterious for protection of critical infrastructure. Moreover, extending patent rights to national cybersecurity too far could even dissuade would-be inventors oftechnologies that would protect the critical infrastructure, resulting in perhaps decreasing national cybersecurity innovation. It appears that introducing exclusive rights and profit motives for national cybersecurity may actually undermine efforts to protect the critical infrastructure. For these reasons, extending exclusive rights to national cybersecurity innovations would be ineffective and is ill advised for innovation policy.