By Jeffrey T. Donner, Esq.

July 28, 2026

The frustration created by Apple’s blood-oxygen feature is a small but revealing example of what patent law does in the real world. A consumer buys an expensive watch containing hardware capable of measuring blood oxygen. The watch performs the measurement, but because of a patent dispute, the consumer must retrieve the result from a separate device. Nobody designed that inconvenience because it improved the product. It exists because patent litigation altered what the manufacturer was legally permitted to do.

Patent law is usually discussed in reverential terms. We are told that patents protect inventors, reward ingenuity, encourage disclosure, and stimulate technological progress. Those propositions sound intuitively correct. But intuition is not evidence. The relevant question is not whether inventors deserve compensation. It is whether granting private parties the legal power to stop others from making, using, or selling an invention is the most efficient way to generate useful innovation.

There is substantial reason to doubt that it is.

A Patent Is Not a Natural Property Right

A physical object is rivalrous. If I take your bicycle, you no longer possess it. An idea is different. If you explain a manufacturing process to me and I use it, you still know the process. My use does not physically deprive you of yours.

Patent law converts that non-rivalrous information into an exclusionary legal right. It allows the patent holder to invoke the power of the federal courts to prevent others from independently producing or using the claimed invention. In practical terms, it is a government-created monopoly of limited duration.

The Constitution does not declare patents to be inherent rights. Article I merely authorizes Congress to secure exclusive rights for limited periods when doing so will “promote the Progress of Science and useful Arts.” The language is instrumental, not moral. Patent protection is justified only to the extent that it advances public progress.

Congress therefore should not ask whether patent owners value their rights. Of course they do. The proper inquiry is whether the system produces more socially valuable innovation than would occur without it—and whether any additional innovation exceeds the system’s enormous costs.

Innovation Often Occurs Without Patents

The central argument for patent law is straightforward: developing a new drug, machine, material, or technology can be expensive, while copying the completed invention may be comparatively cheap. Without exclusivity, competitors could copy the invention, undercut the inventor, and eliminate the financial incentive to undertake the original research.

That problem is real in some industries. It does not follow, however, that a broad, uniform patent system is necessary across nearly every field of technology.

Businesses innovate for many reasons unrelated to patents. They seek first-mover advantages, increased market share, lower production costs, improved reputation, customer loyalty, complementary sales, manufacturing expertise, network effects, trade-secret protection, and the ordinary commercial advantage of being better than their competitors. Recent economic research indicates that firms frequently regard trade secrets, trademarks, and other appropriation methods as more important than utility patents.

Many industries characterized by rapid innovation do not depend primarily on patents. Restaurants develop new processes and recipes. Law firms create new litigation strategies. Financial institutions develop products and analytical methods. Fashion businesses continuously produce new designs. Software developers often compete through speed, execution, service, integration, and continual improvement rather than through a single exclusionary right.

Human beings invented before modern patent systems existed. They also innovate in areas where patents are unavailable, impractical, expired, invalid, or commercially irrelevant. The claim that invention would cease without patents is therefore unsustainable.

The harder question is whether certain categories of research would decline. That possibility deserves serious consideration. But it supports targeted incentives for demonstrably expensive and socially valuable research—not necessarily a sprawling legal system conferring millions of overlapping exclusionary rights.

Patents Can Obstruct the Very Innovation They Purport to Encourage

Innovation is usually cumulative. A new invention rarely emerges from nothing. It builds upon existing scientific discoveries, engineering methods, software architecture, manufacturing techniques, and prior inventions.

A patent on an early stage of that process can become a tollbooth through which every later innovator must pass. The broader and less certain the patent, the greater the risk that later inventors will abandon research, redesign a product inefficiently, pay unnecessary licensing fees, or spend years litigating whether their work falls within someone else’s claims.

Economic-history research has reached a nuanced but important conclusion: when patent rights become excessively broad or strong, they can discourage subsequent innovation rather than promote it.

This is the central contradiction of patent law. The system attempts to promote invention by restricting the freedom to invent.

Patent defenders answer that inventors can negotiate licenses. Sometimes they can. But licensing is not free. It requires identifying the relevant patent owners, evaluating validity and infringement, negotiating terms, monitoring compliance, and pricing uncertainty. When a modern product potentially implicates thousands of patents, obtaining advance permission from every conceivable claimant may be impossible.

The result is not an orderly market in ideas. It is often a legal minefield.

The System Rewards Litigation and Strategic Behavior

The patent system does not merely reward scientists and engineers. It creates tradable litigation assets.

Patent-assertion entities acquire patents and attempt to generate revenue through licensing demands and infringement suits, frequently without manufacturing any product themselves. The Federal Trade Commission has studied these entities and recommended reforms addressing the costs and opacity associated with their practices.

Calling such entities “patent trolls” can obscure the deeper point. They are not aberrations operating outside the system. They are using the rights the system deliberately created. If a patent is property, its owner may purchase it, sell it, license it, aggregate it, and enforce it. A legal regime that creates exclusionary claims should not be surprised when businesses form for the purpose of monetizing those claims.

Even operating companies use patents strategically. Businesses accumulate large portfolios not necessarily because every patented development represents a commercial breakthrough, but because the portfolio provides bargaining power, countersuit leverage, defensive protection, or the ability to threaten market entrants.

That resembles an arms race. Each participant obtains more patents because its competitors have patents. The resulting expenditures may be rational for each company while being wasteful for society as a whole.

Patent Boundaries Are Frequently Uncertain

Property law works best when ownership boundaries are reasonably visible. A landowner can commission a survey. A motor vehicle has a title and a vehicle-identification number. Patent boundaries are written in technical legal claims whose meaning may remain disputed until construed by a court.

A company can conduct a patent search, hire sophisticated counsel, obtain opinions, and still face a plausible infringement claim years after launching a product. The patent may later be narrowed, invalidated, or interpreted differently from what either side originally expected.

That uncertainty is itself a cost. Businesses must price the risk of injunctions, damages, legal fees, discovery, expert testimony, and disruption. Smaller companies may settle even weak claims because they cannot afford to establish noninfringement or invalidity.

A system designed to encourage investment should not casually expose productive businesses to ruinous liability based on exclusionary boundaries that were never clear in the first place.

Disclosure Is an Overstated Benefit

Patent law is often described as a bargain: the inventor discloses the invention to the public in exchange for temporary exclusivity, after which the invention enters the public domain.

In theory, that is valuable. In practice, many patent documents are drafted primarily to obtain the broadest defensible legal protection, not to provide the clearest possible engineering instruction. Researchers may not use patents as their principal technical literature. Some companies affirmatively discourage employees from reviewing competitors’ patents because actual knowledge can increase litigation exposure.

Moreover, the disclosure bargain makes sense only when the inventor otherwise would have maintained the invention as a secret. Many inventions cannot remain secret once the product is sold. Reverse engineering, independent development, employee mobility, academic publication, market pressure, and regulatory disclosure may make the knowledge public regardless.

When an invention would have been disclosed anyway, the public has not received a meaningful benefit in exchange for the monopoly.

The Patent System Favors Capital and Legal Sophistication

Patent law is often defended as protection for the individual inventor against the powerful corporation. Occasionally it serves that function. More commonly, obtaining and enforcing a valuable patent requires money, specialized counsel, technical expertise, years of persistence, and the ability to finance litigation.

A patent has little practical value if its owner cannot afford to enforce it. Conversely, a well-capitalized corporation can build a portfolio, prosecute continuations, challenge competitors’ patents, defend infringement cases, negotiate cross-licenses, and absorb legal expense.

The system therefore does not simply reward invention. It rewards invention combined with capital, legal sophistication, and endurance.

Even when a small inventor holds a legitimate patent, litigation may consume years of the inventor’s life and a substantial portion of any eventual recovery. The supposed reward for invention becomes a contingent right to initiate extraordinarily expensive federal litigation.

Better Alternatives Exist

Abolishing patents would not require society to abandon incentives for research. It would require replacing an indirect monopoly system with more targeted mechanisms.

For pharmaceuticals and other unusually expensive research, government could fund basic science directly, award substantial innovation prizes, purchase successful inventions for the public domain, subsidize clinical trials, provide tax incentives tied to verified research expenditures, or offer limited regulatory exclusivity calibrated to demonstrated development costs.

Prize systems have long been considered as an alternative to property rights in inventions. Their principal advantage is that society can reward a successful innovation without allowing the winner to control subsequent use. Once the prize is paid, competitors may manufacture, improve, combine, and distribute the invention.

Government procurement can accomplish something similar. A public agency can announce a defined technological objective, pay for the desired result, and require open licensing as a condition of payment.

Private ordering would remain available. Employers could contract with researchers. Investors could finance development. Companies could protect genuine secrets. Businesses could compete through speed, quality, manufacturing capability, service, brand, and continual innovation.

The absence of patents would not mean the absence of profit. It would mean that profit would have to come principally from producing something useful rather than from excluding others from producing it.

The Strongest Counterargument: Pharmaceutical Development

The most serious argument against abolition concerns pharmaceuticals and biotechnology. Developing a successful drug can require extensive laboratory work, failed candidates, clinical trials, regulatory review, and major capital investment. Once the chemical compound and treatment are known, generic production may be far cheaper than the original research.

It would be irresponsible to dismiss that concern. Abrupt abolition without a replacement financing mechanism could reduce private investment in certain categories of medical research.

But this demonstrates the weakness of the existing system’s one-size-fits-all approach. The fact that a narrowly tailored incentive may be necessary for a billion-dollar clinical-development program does not establish that society should issue twenty-year exclusionary rights for software functions, business methods, consumer-product features, or minor design variations.

Even within pharmaceuticals, patents do not cleanly measure social value or actual research cost. Companies may obtain multiple patents around one product, modify formulations, pursue new uses, litigate generic entry, and employ other strategies that extend market exclusivity. The resulting price can bear little relationship to the marginal cost of producing the medicine.

A direct reward or limited regulatory-exclusivity system could be tied more closely to documented investment, therapeutic value, unmet need, and public benefit.

Abolition Would Not Require a Constitutional Amendment

The Constitution gives Congress the power to establish patent rights; it does not compel Congress to exercise that power to its maximum extent or to maintain the present Patent Act indefinitely. The constitutional purpose is progress, and Congress’s authority is framed as a means of pursuing that purpose.

Congress could narrow patentable subject matter, shorten terms, limit remedies, impose compulsory licensing, eliminate patents in selected industries, or replace much of the current system with prizes and direct research funding.

Existing patents would present reliance and property-right issues, and any transition would require careful legislation. The Supreme Court has treated issued patents as property rights for certain constitutional purposes. That complicates immediate cancellation, but it does not require perpetual continuation of the same system for future applications.

A practical abolition program could operate prospectively: honor or gradually phase out existing rights, sharply restrict new patents, and establish alternative incentives before protection disappears in industries genuinely dependent upon it.

Conclusion

Patent law is not sacred. It is an economic policy instrument.

Its legitimacy depends on results. If it produces more innovation than it obstructs, at a cost lower than available alternatives, it may be justified. But if it increasingly generates litigation, uncertainty, artificial scarcity, strategic portfolio accumulation, consumer inconvenience, and barriers to follow-on innovation, then its historical pedigree is no defense.

The best argument for patents is not that inventors deserve to own ideas. It is that temporary exclusivity may sometimes be necessary to induce socially valuable investment. That is an empirical claim, and it should be tested industry by industry rather than accepted as a universal article of faith.

We should begin with a presumption of open competition and free use of knowledge. Where a particular field demonstrably requires additional incentives, government should provide the narrowest incentive necessary—through prizes, grants, procurement, tax benefits, or carefully limited exclusivity.

The existing patent system proceeds in the opposite direction. It grants broad exclusionary rights first and asks society to tolerate the resulting costs.

That burden of proof should be reversed.