Opinions and Editorials

Nov. 4, 2019

Morning Consult: National Security Consequences of U.S. Patent (In)eligibility by David Kappos

Since 1790, our patent system has served as an innovation engine propelling the United States to the vanguard of technological development, producing such revered names as Edison, Tesla, the Wright brothers, and countless others. Patents have encouraged exploration and discovery across the broad expanse of American ingenuity. This innovation has enhanced the quality of life for countless Americans and has ensured our global economic and security leadership for generations. That leadership is now in jeopardy.

For more than two centuries, our nation’s Patent Act was interpreted to allow inventions to be patented across broad categories of subject matter. But starting in 2010, the Supreme Court issued a series of decisions that upended longstanding, well-settled law and narrowed the scope of patent-eligible subject matter. This included deciding that broad swaths of innovation are ineligible for patent protection due to their implementation in computer software. As a result, our federal courts now spin their wheels, unable to sort those inventions that can be patented from those that cannot.

Our stalled patent system poses not only a threat to our global economic leadership, but also to our national security. An examination of patent data related to three key technologies declared by the administration and/or Congress as critical to national security — artificial intelligence, quantum computing and 5G — reveals a disconcerting trend supporting this hypothesis.