Patents are not key to innovation

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

Reinforcing Democracy

Answering these questions is a necessary first step to right-sizing the challenge posed by the spread of digital technologies that can be used to enhance the power of the state — whether to combat terrorism or repress dissent. Exaggerating the threat posed by technology could lead to the mistaken conclusion that combating the global spread of surveillance technologies will be enough to secure democracy.

At the same time, liberal governments and organizations can help draw attention to examples of governments that have chosen to roll back or constrain the use of digital authoritarianism and predatory surveillance techniques. Just as nonproliferation experts have studied countries that chose to dismantle their nuclear weapons programs voluntarily, so might democracy and privacy experts hold up the path taken by citizens and elected leaders who have worked to roll back and constrain technologies that were promoting illiberal practices.

Ecuador, which installed a Chinese monitoring system in 2011, began an investigation into its abuses under the new administration that came to office in 2017, including opening its records to The New York Times. The story highlighted China’s export of digital authoritarianism, but it is equally or perhaps more interesting as a story of the conditions under which democratic institutions and publics can say “no” to the excesses of digital surveillance by replacing “illiberal democrats” at the ballot box.

Even within liberal democracies, some localities have taken preemptive measures against tools of digital authoritarianism. For instance, in 2019 the cities of San Francisco and Somerville banned local agencies, including the police, from using facial recognition technology. The state of California also enacted a ban on the use of facial recognition or biometric surveillance in police body cameras, holding that “facial recognition and other biometric surveillance technology pose unique and significant threats to the civil rights and civil liberties of residents and visitors.”