Opinions and Editorials

Jul. 6, 2022

IAM: How patents facilitate market entry and promote competition by Jonathan Barnett

For over a decade and a half, a single narrative has dominated US patent policy at the Supreme Court, Congress and the antitrust agencies. According to this view, Congress and the federal judiciary unwisely strengthened patent protections in the 1980s, impeding entry, discouraging innovation and protecting incumbents against competition. However, this conventional wisdom runs into an inconvenient fact: why have some of the largest US firms been among the most vigorous advocates forweaker patents?

In the lobbying for the America Invents Act (2011), which established the PTAB, Big Tech firms were among the bill’s strongest supporters and have been the most active petitioners at the PTAB since its inception. Among all amicus briefs filed in patent-related cases at the US Supreme Court between 2006 and 2016, only 21% of the briefs filed by Fortune 500 firms favoured the patent owner, with this figure falling to 10% for information technology firms, 11% for financial services companies, 5% for automotive companies and 1% for technology platforms.