This Article challenges this logic on the relationship between patents and national security, in particular by considering that relationship from the lens of competition. It first turns to history, reviewing several instances in which patent protection has clashed with national security interests. These historical instances, which include pre–World War I torpedo development, the birth of the aviation industry, and post-9/11 bioterrorism responses, demonstrate how the competition-suppressing effects of aggressive patent assertion can diminish national security. Second, this Article considers the effects of diminished competition on cybersecurity, a critical component of modern national security. Economic research shows that competition can enhance cybersecurity, and thus patent-based limits on competition can weaken cybersecurity, both by generating economic incentives to make more secure products and by preventing the formation of technology “monocultures.” These historical and contemporary competition considerations thus lend to policy that balance patent incentives and the value of competition to drive forward security-sensitive technological development.
Santa Clara High Technology Law Journal
May 11, 2020