Patents deck cybersecurity---they suppress critical competition that’s necessary to solve vulnerabilities.

This syllogistic equating of patent protection and national security, though perhaps initially attractive, appears on closer inspection to be overly simplistic. The purpose of this Article is to challenge this line of reasoning, showing that patent rights, and in particular unbridled assertion of patents, can impair and repeatedly has impaired national security interests. It reaches this conclusion by considering patents and national security through the lens of competition. Patents by definition suppress competition to some degree,1 2 so insofar as competition can enhance national security in certain ways, patents can diminish national security when used or licensed in particularly aggressive ways. To establish the relationship between patents and national security, then, this Article also contemplates how competition relates to national security.

The Article proceeds as follows. Part II reviews how patent policy has recently intersected with national security. It first explains the primary basis for relating innovation policy generally with national security, namely ongoing technological "races" in security-sensitive technologies. It then discusses recent events that have given rise to interest in and arguments over how patent law and policy can affect national security interests, particularly those relating to the aforementioned technology races, and identifies the appearance of the syllogistic argument that patent protection uniformly increases national security.

The remainder of the Article interrogates the syllogistic argument, primarily on two fronts. Part II takes a historical perspective, considering three past anecdotes in which patents have run headlong into national security. 3 While each of the three examples-torpedo development prior to World War I, patent licensing in early aviation, and bioterrorism threats following the September 11th attacks-offers unique insights and lessons (plus an unexpected factoid on The Sound of Music 4 ), the common thread is that aggressive assertion and licensing of patents, by creating an environment devoid of competition, can stymie important government interests in national defense and security. Part III considers cybersecurity, which is closely tied to national security.15 Reviewing economic and computer science research, Part III identifies two reasons why competition enhances cybersecurity: Competition encourages firms to improve cybersecurity as a market-driven value-add, and it prevents the formation of single-vendor "monocultures" of technology that have been shown to be especially susceptible to cyberattacks.

Tying any policy field to national security is consequential, because "to securitize an activity or state-of-affairs is to present it as an urgent, imminent, extensive, and existential threat" to the nation at large, thereby justifying "extraordinary responses" that "typically involve bending rules of normal governance." 16 That is no less true for patent policy: The risk of overly simplistic approach to how patents affect national security could easily be to justify unwarranted expansions of patent protection that could end up undermining the very object sought to be achieved. Accordingly, Part IV offers policy recommendations on how best to address the more nuanced relationship between patents and national security, especially in view of effects on competition.17