LENS Essay Series: Balancing strong intellectual property protections against urgent national security needs

“Technology,” scholars tell us,has permitted the division of mankind into ruler and ruled.”  While Americans have no desire to rule mankind, they certainly don’t want adversaries wielding high-technology thinking they could use it to impose their rule on them.  So how can the U.S. ensure that it has the best technology for its national security needs?

Much has to do with having a robust set intellectual property rights in place that can incentivize innovation.  Still, can there be too much of what is (normally) a good thing?  Today’s addition to the LENS Essay Series illustrates the complications that can arise in our system of patent protections when the nation confronts a profound national security emergency. 

In her essay, Which Protectors Need More Protection? Analyzing Legal Possibilities of Reducing Patent Protection to Protect National Defense Companies,”  Ashley DaBiere, a truly brilliant 3L here at Duke Law, gives us a detailed analysis of the issues. Early in her essay she highlights the national security threat posed by high-technology, to include sophisticated biotech:

COVID-19 was a stark reminder of the hazards posed to our national security by infectious diseases and it highlighted weak spots in our defense strategies when dealing with this type of threat. 

Such improvements to these strategies are especially critical given advances in biotechnology like CRISPR-Cas9, which continues to make genetic tailoring of organisms, including viruses, more efficient, and could ultimately be used to create a gene-edited pathogen with a high lethality and contagiousness. (Citations omitted)

Ms. DaBiere then proceeds to explain how well-intended intellectual property law could make developing strategies to counter these terrifying national security threats difficult.  For those like myself not familiar with patent litigation, what she relates is rather startling:

As technology continues to develop, intellectual property in the form of patents will continue to reign as a key mechanism to protect an entity’s inventions, providing a patent holder with a competitive edge and thus further incentive to innovate.

Particularly in the realm of inventions created for national security purposes, the United States must continue to ensure inventors are given these incentives to catapult our technological capabilities into an uncertain future with unknown threats from a barrage of enemies.

In sum, intellectual property is undoubtedly critical to national security, if for no reason other than to keep up with increasing intellectual property protections in autocratic states for new forms of vital technologies.

Nevertheless, in strengthening patent protections, policymakers must still consider the costs to accused infringers who are ultimately found liable for encroaching on a patentee’s rights.

Of critical concern is the possibility that an accused infringer is a company contributing to the country’s national security. Currently, patent law provides patent holders with a valid patent the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States, or importing the invention into the United States.

This wide range of condemned activities by non-patent holders leads to litigators filing, on average, 4,000 infringement suits a year against accused infringers. For the unfortunate accused infringer who becomes a defendant, a patent suit can be costly.

The average cost of defending a patent infringement suit can range from $2.3 million to $4 million.  Awards in successful patent infringement suits can range from a few million dollars to more than $2 billion.

In a world where small businesses play a vital role in contributing to the country’s national security, allowing one of these companies to become financially crippled by becoming a liable defendant in a patent infringement suit is not a mere inconvenience to its legal department, but a serious danger to the entire United States.

Even worse, successful patent suits can lead to defendants being enjoined from manufacturing or selling their accused products, potentially causing a deficit in technology available to the military.  (Citations omitted)

In her essay Ashley gives us a detailed walk through a maze of existing law and precedents, and explains the challenges they could present in an urgent national security emergency.  She closes with a call to action:

Since the country’s birth, property ownership has historically been viewed as a distinct example of American liberty and freedom.  Intellectual property is generally portrayed with similar patriotic values, as it gives American companies a competitive edge by incentivizing them to create some of the most advanced technology in the world

America’s national security should not yield to intellectual property protections. Accordingly, lawmakers should consider ex ante how patent protections on national defense inventions will yield during national emergencies to give grace to entities working to preserve the national security.

As we come out of a nationwide pandemic and begin to consider the consequences of ambiguous statutes in current patent litigation suits, there is no better time than the present to pursue reform in striking a balance between national security interests and intellectual property protections. (Citations omitted)

Be sure to read here full essay (found here).

About the Author:

Ashley DaBiere is a 3L (J.D. 2023) at Duke University School of Law, where she is an Executive Editor for the Duke Journal of Constitutional Law & Public Policy and a Senior Research Editor for the Duke Law & Technology Review. Ashley graduated from Cornell University in 2019 with a B.A. in Biological Sciences with a concentration in Neurobiology, where she spent several semesters researching neuron regeneration. During her 1L summer, Ashley interned in the Department of In-House Counsel at Catalent Pharma Solutions. During her 2L summer, she worked at Desmarais, LLP, a patent litigation firm in New York City.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself! 



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