Of Monopolies and Monocultures: The Intersection of Patents and National Security

38 Pages Posted: 19 Apr 2021

Date Written: May 11, 2020

Abstract

Recent conversations about patent policy are increasingly incorporating themes of national security. In particular, the national security dimensions of “races” against technological superpowers such as China, in fields such as artificial intelligence (AI), fifth-generation (5G) mobile communications networks, and quantum computing, has given rise to a national dialogue on spurring domestic innovation, a dialogue into which patents naturally fit. As a result, national security has made a notable appearance in recent key patent policy situations, including the patent subject matter eligibility hearings in the Senate, the Apple–Qualcomm–Federal Trade Commission litigation over patents and antitrust, and the Verizon–Huawei patent licensing dispute. Many of these situations have given rise to an intuitively attractive though simplistic argument: If national security depends on rapid innovation and patents encourage innovation, then stronger patent protection enhances national security.

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.

Keywords: Intellectual property, patents, national security, competition, antitrust, FRAND, SEP, 5G, artificial intelligence

JEL Classification: K21, O31, O38

Suggested Citation

Duan, Charles, Of Monopolies and Monocultures: The Intersection of Patents and National Security (May 11, 2020). Santa Clara High Technology Law Journal, Vol. 36, No. 369, 2020, Available at SSRN: https://ssrn.com/abstract=3820782

Charles Duan (Contact Author)

R Street Institute ( email )

1212 New York Ave NW Suite 900
Washington, DC 20009
United States

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