The overall incentive is negative, drowned out by litigation, licensing fees, and loss of cumulative innovation.

Most technologies are developed by many inventors over many years, a process called “cumulative” innovation. Too often, however, early inventors get a patent on a small and perhaps insignificant piece of the technological puzzle, yet their patent covers the entire puzzle. Inventors who solve subsequent parts of the puzzle may need to pay royalties to the patentee, even if their contributions are larger.

As legal experts who focus on technology law and policy, we suggest that the problem boils down to two issues: too many patents and too little accurate information about them.

Too many patents

The U.S. is awash in patents. Over 350,000 U.S. patents were granted in 2019, four times the per capita rate in 1980. From the perspective of research managers at big firms, patents are cheap and easy to get. For example, in the early 2000s Bill Gates decided that Microsoft was patent-poor, and within a few years the company increased annual patent applications by 50%.

Patents are easy to get because the standards of patentability are low and because the burden is on the U.S. Patent and Trademark Office to prove an invention is not patentable. Patent examination is slow. It often takes three years or more. Despite increased staffing, the backlog of patent applications has continued to grow, and examiners spend on average only 20 hours reviewing each application. The patent examiner  read and understand the invention in an application, determine whether the invention meets the claims of the application, search existing technology to see if the invention already exists and write a response to the application.

Helter-skelter examination causes errors – many patents are too broad, or they cover obvious inventions. To draw attention to problems caused by the , billionaire entrepreneur Mark Cuban  at the Electronic Frontier Foundation dedicated to elimination of “stupid patents.”

Innovative firms that succeed in assembling many pieces of a technology puzzle into a finished product must consult with a patent lawyer to learn whether their new technology is covered by one or more patents owned by others. Ideally an innovator will get permission to use patented technology, usually for a fee, or redesign its technology to steer clear of relevant patents.

In practice this patent “clearance” process is difficult, costly and sometimes impossible. For technologies like smartphones, a patent attorney likely would need to review hundreds of patents, including many patents that are not granted until long after the new product is launched. Failure to license relevant patents creates a risk of litigation and the threat the new technology could be forced out of the marketplace.

As a result, smartphone patent litigation is far too common. Apple – a smartphone pioneer – has participated in scores of lawsuits around the globe as both a defendant and plaintiff. As a plaintiff, Apple sometimes uses its patents opportunistically to hinder innovation by its rivals.

For example, Apple sued Samsung using a patent that claimed the  feature on a phone as Apple’s invention. Despite strong evidence that inventors before Apple had already accomplished the key steps to implement this feature, Apple convinced the courts that their version of this feature was patentable, and after seven years Samsung agreed to pay license fees to Apple to .

Economic research suggests that these litigation costs and license fees burden innovative firms to such a degree that on balance the patent system discourages innovation. In other words, innovative firms gain a benefit from their patents on their new technology, but that benefit is more than offset by the many patents owned by others that might be asserted against the new technology.