Patents suppress competition and undermine cybersecurity
Charles Duan, 2020 – Adjunct Professor, Assistant Professor (starting fall 2023) and senior policy fellow with the Program on Information Justice and Intellectual Property, American University Washington College of Law; Postdoctoral Fellow, Cornell Tech; member of the Patent Public Advisory Committee, U.S. Patent and Trademark Office. “OF MONOPOLIES AND MONOCULTURES: THE INTERSECTION OF PATENTS AND NATIONAL SECURITY” 36 Santa Clara High Tech. L.J. 369, Nexis Uni, Accessed via University of Michigan //DH
This article has looked at the recent policy conversations on patents and national security, and questioned a common line of reasoning in those conversations, namely an argument that increased patent protection will increase national security. Both historical evidence and modern research into cybersecurity offer reasons to dispute that argument. With regard to history, patents have on multiple notable occasions interfered with the U.S. government's ability to prepare for war or protect the public from terrorism, leaving the government forced to take sometimes forceful measures to resist assertions of patent rights in the name of national security. With regard to cybersecurity, economic and computer science research suggests that robust competition enhances cybersecurity by giving technology firms market-based incentives to secure their products, and by preventing vulnerable monocultures from arising. Insofar as patents can suppress competition, patents can thus be in tension with cybersecurity and national security. Based on these identified tensions and historical predicaments, the article recommends that policymakers take steps to account for the nuanced relationship between patents and national security, and in particular focus on policies that enhance competition rather than imposing patents on technologies necessary to protecting the public.