2. Startups would choose patents, which nullifies the counterplan.

Another study finds that firms, despite acknowledging that patents are not effective tools to create exclusivity, are patenting to obtain rights that can be strategically useful. Some include blocking rivals from patenting related inventions, using patents to gain low-cost access to another's technology in negotiations and to protect against patent suits.154 This study recognized that some firms were using "patent portfolios to garner licensing revenue."155 Its authors conclude, "our findings suggest that patents are still not the major mechanism for appropriating returns to innovations in most industries."156

In addition to the escalating numbers of patents issued, the number of patent infringement lawsuits has ramped up over the past several years.157 Some have documented that an increasingly large component of those suits in recent years is brought by non-practicing entities.158 According to one study of patent cases filed from 2007 through 2012, "[o]f the ten parties who filed the greatest number of patent litigations in the years . . . studied, all were patent monetization entities."159 These entities have been active asserting patents against small companies. According to one study of 233 technology startups, 79 have been approached with the threat of a patent monetization lawsuit.160