Patents Are Good — Busting the Myths of Patent Critics

Here is a fact that rarely gets stated plainly: the cancer drugs that saved lives in your family, the precision tools that German manufacturers sell across the world, and the mRNA technology that ended the COVID pandemic were all built on patent protection. Every credible attempt to abolish patents or gut patent enforcement has been backed by the companies that no longer need them — the tech giants who already dominate through data monopolies, network effects, and trade secrets that no startup can replicate. When Elon Musk tweets “delete all IP law,” he is not advocating for the small inventor. He is pulling up the ladder. And the economists who claim patents harm innovation have not found a single real economy where abolishing them produced better results. What follows is a full examination of every serious argument the critics make — and why, when examined against the evidence, not one of them holds up.

Every few years, voices emerge calling the patent system broken, harmful, or obsolete. Tech billionaires tweet that we should “delete all IP.” Economists publish papers arguing patents stifle innovation. Podcasters dedicate episodes to “the case against patents.” These arguments deserve serious answers — not dismissals. This article works through the 22 most frequently cited objections to patents, presents each critic’s strongest case, and then provides the three most compelling counter-arguments grounded in empirical studies, institutional data, and expert testimony. The goal is not to declare the patent system perfect. It is to show that the critics’ case, examined closely, does not hold up.

I am advising clients for over 20 years on patent matters already and I heard these arguments over and over. I take the chance to address all of them.

22 Myths of Patent Critics

1. Patents Do Not Stimulate Innovation
2. Patents Create Monopolies That Harm Consumers via High Drug Prices
3. Patent Trolls / NPEs Abuse the System
4. Patent Thickets Block Follow-On Innovation
5. The Patent System Is Captured by Incumbent Interests
6. Patents Harm Global Health and Developing Nations
7. Low-Quality / Trivially Obvious Patents Are Routinely Granted
8. Software and Business Method Patents Are Harmful
9. Prize Systems and Government Grants Would Work Better
10. Ideas Cannot Be “Owned” — Patents Are Philosophically Incoherent
11. Patents Favor Large Corporations Over Small Inventors
12. Pharma Evergreening Extends Monopolies Beyond Their Legitimate Term
13. Patents Historically Concentrated Corporate Power
14. Innovation Happens Perfectly Well Without Patents
15. Patent Litigation Is Pure Dead-Weight Economic Loss
16. Gene Patents and “Patents on Life” Are Ethically Objectionable
17. Affordable Patent Lawyers Are Not Good Enough — The “Wrong Attorney” Problem
18. Disclosure Without Enforcement Is the Worst Possible Outcome
19. Patents Are Unenforceable Against Chinese Manufacturers
20. Defending Patents Destroys Inventors Financially — The Goodyear Precedent
21. EUIPO Expansion Into Patents Is Institutional Overreach
22. Patents Are Aggression Against Tangible Property Owners — The Kinsella Argument
23. Verdict: What the Evidence Actually Shows

Patent Critic Myth 1 — Most Frequently Cited: Patents Do Not Stimulate Innovation

The Critics’ Argument

Economists Michele Boldrin and David K. Levine, in their widely cited 2013 paper in the Journal of Economic Perspectives, state flatly: there is no empirical evidence that patents serve to increase innovation and productivity. They point to the “patent puzzle” — despite a massive increase in patent filings since the 1980s and dramatically stronger legal protection, there has been no corresponding acceleration in R&D investment or productivity growth. Historical cases are invoked: Italy outperformed the UK in pharmaceutical innovation before introducing patent protection in 1978; Germany produced more drug innovations than Britain when it could only patent processes, not compounds. Conclusion: patents reward rent-seeking, not invention.

Critic sources: Boldrin & Levine, JEP (2013) · Washington Post (2012) · HBS Nicholas (2013)

Why This Myth Is Wrong

1. The macro data contradicts the claim.

The EUIPO/EPO joint study (2026), covering 361 industries across 2021–2023, found that patent-intensive industries alone account for 18.4% of EU GDP and 11.8% of EU employment — €7.7 trillion of economic activity. WIPO’s World Intellectual Property Report (2015) examined six breakthrough technologies — aviation, antibiotics, semiconductors, 3D printing, nanotechnology, and robotics — and found evidence the IP system supported innovation across all of them, with no indication that high patent volumes caused increased friction. The Boldrin/Levine thesis rests on aggregate patent-count correlations. But patent counts exploded largely because of strategic defensive filing by corporations. The correct test — whether patent-holding innovators invest more in R&D than comparable firms that do not hold patents — consistently yields a positive answer.

Sources: EUIPO/EPO joint study (2026) · WIPO World IP Report (2015)

2. Pharma is the decisive test case — and patents pass it decisively.

The Congressional Budget Office (2021) confirms that patent-based exclusivity is the primary mechanism making new drug development commercially viable. The landmark Mansfield (1986) survey of 100 US manufacturing firms in 12 industries, documented in detail by Health Affairs (2015), found 65% of commercially introduced pharmaceutical inventions would not have been developed without patents — a share that reached 0% in textiles and motor vehicles. Drug development costs exceed $2 billion per approved compound; any competitor can replicate the molecule at marginal cost once it is disclosed. Without patent-backed exclusivity, rational capital simply does not fund that risk.

Sources: CBO (2021) · Health Affairs (2015), citing Mansfield (1986) · Williams (2016), PMC/NIH

3. Boldrin & Levine’s prescription is empirically untested and logically circular.

Even the 2013 paper concedes a “partial equilibrium” positive incentive effect. The authors never identify a modern patent-free economy that outperforms patent-protected ones in R&D intensity — because no such economy exists. Heidi Williams’ comprehensive review (PMC/NIH, 2016) concludes the relationship is positive, sector-variable, and strongest in industries where development costs are highest. Edith Penrose identified the logical trap in 1951: it is far easier to argue against a theoretical construct than to demonstrate that abolishing an existing institution produces better outcomes.

Sources: Boldrin & Levine (2013) · Williams (2016), PMC/NIH

Patent Critic Myth 2 — High Public Resonance: Patents Create Monopolies That Harm Consumers via High Drug Prices

The Critics’ Argument

Patent-protected drug monopolies allow companies to charge prices far beyond competitive market levels, placing life-saving medications out of reach. The COVID-19 vaccine debate became the most visible flashpoint: Moderna and Pfizer held tight IP protections while global supply remained constrained. Jonas Salk’s decision not to patent the polio vaccine — enabling immediate global production — is invoked as the moral counterpoint. The argument extends beyond pharma: clean energy patents prevent developing nations from decarbonizing, creating “clean energy apartheid.”

Critic sources: NYT (2022) · Gizmodo/Earther (2021) · Common Dreams (2022)

Why This Myth Is Wrong

1. Without exclusivity, the drugs that appear “too expensive” would not exist at all.

The biopharmaceutical R&D process is uniquely capital-intensive: average development costs exceed $2 billion per approved molecule, clinical failure rates run at 90%, and timelines span 12–15 years. The Congressional Budget Office (2021) confirms that patent-based exclusivity is the primary mechanism making this investment commercially viable. Without it, rational capital simply would not fund the risk. Critics who use drug pricing to indict the entire patent system are attacking the wrong mechanism — the reform target is downstream pricing policy and reimbursement frameworks, not the IP right that funded the development.

Sources: CBO (2021) · Health Affairs (2015)

2. The Salk example is systematically misused.

Jonas Salk’s polio vaccine was developed primarily with public funds at a university in a 1950s environment with negligible approval costs by modern standards. The COVID-19 mRNA vaccines were developed in under twelve months for a novel pathogen, largely with private capital at extraordinary risk. These are incomparable situations. Furthermore, the actual bottleneck to global vaccine rollout was not patents but manufacturing capacity, cold-chain infrastructure, and regulatory harmonization. Moderna and Pfizer both offered licensing arrangements; distribution lagged because of infrastructure, not IP. Former USPTO Directors David Kappos (IP Fridays, Ep. 143) and Andrei Iancu stated publicly at the Council for Innovation Promotion (2022) that extending the TRIPS IP waiver was counterproductive for exactly these reasons.

Sources: IP Fridays Ep. 143 (Kappos) · Council for Innovation Promotion (2022)

3. The pricing problem is a market structure problem — not a patent problem.

US drug prices are dramatically higher than German ones not because patent terms differ but because the US lacks central price negotiation. Germany’s mandatory health technology assessment under AMNOG (2011) requires demonstrating added therapeutic benefit for any product seeking premium reimbursement; drugs without proven benefit receive only reference pricing. The RAND/ASPE drug pricing study (2022) found US brand-name drug prices were 278% of OECD comparison-country prices — driven by market structure, not patent law. Same molecule, same patent, dramatically different prices.

Sources: AMNOG / Global Legal Insights · PMC AMNOG 10-year analysis (2023) · RAND/ASPE drug pricing (2022)

Patent Critic Myth 3 — High Practical Resonance: Patent Trolls / NPEs Abuse the System

The Critics’ Argument

Non-Practicing Entities (NPEs), also called patent assertion entities or “patent trolls,” accumulate large patent portfolios not to innovate but to extract settlement fees from operating companies. Studies show NPEs accounted for 63–73% of all US patent litigation in 2022. Firms that lose to NPEs reduce R&D by roughly 20%. Direct annual defendant costs were estimated at $29 billion in 2012. Only five cents of every dollar in NPE damages flows back to actual inventors.

Critic sources: ProMarket / Stigler Center (2024) · Bessen & Meurer (2014) · R Street Institute (2025)

Why This Myth Is Wrong

1. NPE abuse is a correctable enforcement pathology, not a structural indictment of patents.

NPE litigation has declined significantly following post-Alice case law, PTAB inter partes review proceedings, and the Supreme Court’s TC Heartland (2017) decision, which ended venue shopping. These abuses arose from specific, identifiable legislative and judicial choices — all of which have been substantially corrected. Former USPTO Director Andrei Iancu stated at IPAS 2025: “No rational businessperson would ever support the idea of deleting all IP law unless their limited business interests would benefit economically from depressing the value of American innovation.” The right response is targeted enforcement reform — which the PREVAIL and RESTORE Acts are now pursuing.

Sources: IPWatchdog, Iancu IPAS 2025 · TC Heartland (2017)

2. Removing patents does not remove NPEs — it removes the startups that need patents to defend themselves.

The National Law Review / Sedona Conference (2025) makes the structural point plainly: large tech incumbents like Google, Meta, and Amazon do not need patents to dominate — their moats are network effects, proprietary data, and trade secrets. An SME manufacturer or biotech startup has none of those advantages. Patents are precisely their tool for resisting encroachment by larger players. If patents are weakened, NPEs will pivot to trade secret and copyright claims — but the small inventor will have lost their primary weapon.

Sources: National Law Review / Sedona Conference (2025) · EUIPO/EPO Startup Finance (2023)

3. The empirical benefit to patent holders dwarfs NPE litigation costs for most companies.

The NBER “patent lottery” study (Farre-Mensa et al., 2020), which exploited the quasi-random assignment of patent examiners to isolate causal effects, found that obtaining a first patent caused startups to grow 55% faster in employment and 80% faster in sales over five years — and more than doubled the probability of an IPO. This positive effect, experienced by the overwhelming majority of patent holders who are operating companies, vastly outweighs the NPE litigation costs borne by a minority. The NPE problem is real. But it is no more an argument for abolishing patents than fraud in a specific market sector is an argument for abolishing contracts.

Sources: Farre-Mensa et al. NBER (2020) · EUIPO/EPO Startup Finance (2023)

Patent Critic Myth 4: Patent Thickets Block Follow-On Innovation

The Critics’ Argument

An interlocking web of overlapping patents — particularly in software, semiconductors, and biotechnology — creates a minefield that blocks competitors and researchers from building on prior art. The explosion of patent filings in the 1990s created “patent thickets” that slow cumulative innovation. One frequently cited study of human gene patents demonstrated reduced subsequent research in affected genetic domains after patents were granted.

Critic sources: Wikipedia, Criticism of Patents · National Academy of Sciences (2004)

Why This Myth Is Wrong

1. The thicket argument is sector-specific and historically bounded.

WIPO’s case study analysis (2015) of six breakthrough and emerging technologies found no indication that high patent filing volumes in 3D printing, nanotechnology, or robotics caused increased litigation or friction. Semiconductor and telecom companies resolved thicket problems through cross-licensing pools (MPEG-LA, Via Licensing) and FRAND frameworks. In most mechanical engineering and specialty chemical sectors — the SME core domain — patent thickets are not a meaningful operational problem.

Sources: WIPO World IP Report (2015) · OECD (2004)

2. Patent disclosure is the antidote to thickets, not the cause.

Every patent in a “thicket” is simultaneously a detailed technical publication that engineers can design around, license, or build upon. Without the patent system, that technical knowledge would reside as trade secrets, permanently unavailable to follow-on innovators. The choice is not between thickets and free cumulative innovation — it is between thickets with full public disclosure and permanent secrecy with no design-around possibility. Freedom-to-operate (FTO) analysis navigates thickets effectively. But you cannot design around a trade secret you cannot see.

Sources: WIPO Economic Development & Patents · Williams (2016)

3. Thicket problems are a patent quality failure — and quality is improving.

The genomics thicket studies reflect an era of overly broad grants at the USPTO in the 1990s and early 2000s. The Supreme Court’s Mayo and Alice decisions, post-grant oppositions at the EPO and PTAB, and improving examination standards have substantially narrowed such patents. OECD data (2004) shows that EPO post-grant opposition proceedings are an efficient quality control mechanism: between 1981 and 1998, 8.6% of EPO grants were opposed, with one third revoked.

Sources: OECD (2004) · Supreme Court Mayo/Alice decisions

Patent Critic Myth 5: The Patent System Is Captured by Incumbent Interests

The Critics’ Argument

Boldrin and Levine argue that patent systems are captured by political economy dynamics: once any IP protection exists, holders lobby for ever-stronger rights. The result is a ratchet — patent systems only grow stronger and more expensive regardless of social welfare. Jack Dorsey’s and Elon Musk’s 2025 calls to “delete all IP law” gave this structural critique a populist platform.

Critic sources: Boldrin & Levine (2013) · National Law Review (2025)

Why This Myth Is Wrong

1. The post-2006 record directly contradicts the ratchet thesis.

The US record since 2006 systematically contradicts the “only grows stronger” prediction: eBay (2006) restricted injunctions; Alice/Mayo (2012–2014) drastically narrowed eligibility; the AIA (2011) created the PTAB, which invalidated thousands of large-company claims; TC Heartland (2017) ended venue shopping. Former USPTO Director Iancu stated at IPAS 2025 that the direction of the past 20 years has been predominantly toward weakening patent rights. The system can, and does, reform itself.

Sources: IPWatchdog, Iancu IPAS 2025 · CSIS (2024)

2. The largest beneficiaries of patent abolition would be incumbents, not innovators.

As the National Law Review / Sedona Conference (2025) observes, Google, Facebook, Amazon, and Tesla already dominate through scale, data monopolies, and network effects — not patents. Their proposal to delete IP law reads less like a call for open innovation and more like an effort to pull up the ladder. LLM and AI providers specifically rely on trade secrets that startups cannot replicate. For an SME manufacturer or biotech startup, patents are the equalizer.

Sources: National Law Review / Sedona Conference (2025) · IPWatchdog, Iancu (2025)

3. Weaker Western patent rights primarily benefit China.

The National Security Commission on AI Final Report and CSIS (2024) document that every US weakening of patent rights has created a strategic vacuum that China is deliberately filling by strengthening its own IP regime. China overtook the US as the leading PCT filer at WIPO in 2019. A European SME that dismisses patent protection as “captured politics” is making a unilateral disarmament decision while its Chinese competitors file more and stronger patents every year.

Sources: NSCAI Final Report, Ch. 12 · CSIS (2024)

Patent Critic Myth 6: Patents Harm Global Health and Developing Nations

The Critics’ Argument

Strict patent protections in pharma and clean energy create “vaccine apartheid” and prevent developing nations from manufacturing life-saving drugs at affordable prices. The TRIPS Agreement is criticized for imposing strong patent standards on countries that lack the manufacturing base to benefit from them.

Critic sources: Gizmodo/Earther (2021) · Common Dreams (2022)

Why This Myth Is Wrong

1. The access problem in developing nations is primarily affordability and infrastructure — not patents.

For most essential medicines, patents have already expired in the developing world — through time, TRIPS flexibilities, or compulsory licensing. The medicines unavailable in Sub-Saharan Africa are largely off-patent. The barrier is manufacturing capacity, regulatory approval, cold chain logistics, and purchasing power. Even after the limited TRIPS COVID vaccine waiver was granted in 2022, uptake in low-income countries did not meaningfully accelerate — because the bottleneck was cold chain and healthcare infrastructure, not IP.

Sources: PLOS Medicine (2022) · WTO TRIPS waiver implementation review (2022) · European Journal of Health Economics (2011) · Expert Opin Ther Pat (2021)

2. Patents incentivize the R&D that produces the drugs in the first place.

Without patent-based incentives, pharmaceutical companies would not develop medicines for diseases prevalent in developing markets. The Advance Market Commitment (AMC) model for pneumococcal vaccines demonstrated that pull mechanisms leveraging IP-protected products can deliver vaccines to developing markets at affordable prices. The correct conclusion is not “abolish patents” but “complement patents with tiered pricing, AMCs, and public-private partnerships.”

Sources: Orphan Drug Act data · GAVI/Gates AMC case studies · ScienceDirect Pharma Innovation Incentives (2022)

3. Countries that weakened patents have not gained meaningful innovation capacity.

The Yi Quan (2008, Kellogg School) study cited by critics showed TRIPS did not increase domestic pharmaceutical innovation in low-income countries — unsurprising, because the constraint is the absence of a domestic R&D infrastructure, not patent law. India’s generics pharmaceutical industry operates by exploiting the public disclosure function of patents to produce off-patent drugs. It free-rides on the patent system’s technical disclosure, which is evidence in favour of patents’ public benefit, not against them.

Sources: Yi Qian (2007), Kellogg School · ScienceDirect (2022)

Patent Critic Myth 7: Low-Quality / Trivially Obvious Patents Are Routinely Granted

The Critics’ Argument

Patent offices — particularly the USPTO during the 1990s and 2000s — routinely granted patents on obvious or trivially incremental innovations. Boldrin and Levine cite examples: patents on “swinging a swing,” “poking objects through the fifth dimension,” and Amazon’s one-click shopping. Critics argue patent examiners face institutional pressure to lower standards, creating an ever-growing inventory of worthless but legally dangerous patents.

Critic sources: Boldrin & Levine (2013) · Springer/IIC Patent Quality Critique (2024)

Why This Myth Is Wrong

1. The EPO applies one of the strictest examination standards in the world.

The “silly patent” examples critics cite are overwhelmingly US patents from a specific era. OECD (2004) documents that EPO’s post-grant opposition system functions as an efficient quality filter: between 1981 and 1998, 8.6% of EPO grants were opposed, with one third revoked and another third amended.

Sources: OECD (2004) · EPO examination guidelines

2. Post-grant review mechanisms have dramatically improved quality.

The America Invents Act (2011) created IPR and PGR proceedings at the PTAB specifically to challenge low-quality patents. In Europe, the Unified Patent Court (UPC, launched June 2023) provides a new central revocation mechanism across 18 EU member states. Critics who cite 1990s examples are describing a system that has subsequently reformed itself substantially through exactly the democratic and judicial channels Boldrin and Levine claim do not function.

Sources: AIA (2011) · UPC (2023) · EPO opposition statistics

3. The alternative — no patents — produces unbreakable trade secret monopolies.

The Coca-Cola formula, kept secret for over 130 years, represents an infinite monopoly with zero disclosure obligation, zero public benefit, and no post-grant challenge procedure. Low-quality patents are worse than good patents — but they are still better than trade secrets: they expire, can be challenged via opposition, and must be publicly disclosed. Trade secret monopolies do none of these things.

Sources: NSCAI Report on trade secrets · WIPO trade secret page

Patent Critic Myth 8: Software and Business Method Patents Are Particularly Harmful

The Critics’ Argument

Software patents primarily entrench large incumbents and feed NPEs rather than incentivizing development. Innovation cycles are fast, R&D costs are low, and the marginal cost of copying code is zero. NPR’s Planet Money (Episode 551, 2014) presented economists arguing we should get rid of patents altogether, with software as the primary exhibit.

Critic sources: NPR Planet Money, Ep. 551 (2014) · Bessen & Hunt (software patents research)

Why This Myth Is Wrong

1. The Supreme Court has substantially corrected the software patent problem.

The Alice Corp. v. CLS Bank decision (2014) significantly narrowed patent eligibility for abstract-idea software implementations. CSIS (2024) estimates that VC investment in patent-intensive sectors including software fell from 50% (2004) to 28% (2017), suggesting Alice overcorrected — making it an argument for restoring balance, not for further restriction. Former Director Iancu (IPWatchdog, 2025) specifically called for legislative clarification of Section 101 to restore certainty without re-opening pre-Alice era abuses.

Sources: Alice Corp. v. CLS Bank (2014) · CSIS (2024) · IPWatchdog, Iancu (2025)

2. Europe excluded software patents and did not produce a dominant software industry.

The European Patent Convention explicitly excludes software “as such” from patentability (EPC Art. 52). If software patents were purely harmful, Europe should dominate global software markets. It does not. The US, where software patents were broadly available until Alice, produced the world’s dominant software ecosystem. The EUIPO/EPO startup finance study (2023) confirms that patent-holding startups are more than twice as likely to achieve a successful exit.

Sources: EPC Art. 52 · EUIPO/EPO Startup Finance (2023)

3. Fast innovation cycles reduce monopoly effects without eliminating a patent’s signaling value.

Fast cycles mean that follow-on innovators can quickly design around or supersede a patent — reducing the actual monopoly effect to near zero in most software cases while preserving the patent’s value as a fundraising and credibility signal. The NBER patent lottery study shows this signaling effect is largest for startups with first-time founders outside major hubs. A patent does not need to create a lasting monopoly to create enormous startup value — it needs only to close the next funding round.

Sources: Farre-Mensa et al. NBER (2020) · EUIPO/EPO Startup Finance (2023)

Patent Critic Myth 9: Prize Systems and Government Grants Would Work Better

The Critics’ Argument

Government prizes, direct R&D grants, and open-source models can replace patents as innovation incentives without creating monopolies. Jonas Salk’s polio vaccine and the globally coordinated influenza vaccine system — both developed without IP considerations — are cited as proof. Economists like Michael Kremer have developed formal models for government “patent buyouts” allowing immediate open publication.

Critic sources: Gizmodo/Earther (2021) · Kremer (1998), patent buyout model · Science Business (IP debate)

Why This Myth Is Wrong

1. Prize systems have a 200-year track record of failing to replace market-based innovation at scale.

The prize concept was seriously proposed and rejected in the great 19th-century British patent abolition campaign, and periodically since, without ever displacing the patent system anywhere. Prizes work for well-defined, near-term challenges but systematically fail to generate sustained speculative long-term R&D. The mRNA platform technology — developed through decades of basic research before any pandemic application was foreseeable — would never have attracted a prize because nobody knew what to offer a prize for.

Sources: Fritz Machlup & Edith Penrose (1950) · Kremer (1998) patent buyout model · HBS Nicholas (2013)

2. Government grants fund research; patents fund commercialization — they are complementary, not competing.

Government R&D grants produce important basic research but have a poor track record in commercialization. The EUIPO/EPO (2026) finding that 88% of European VC investment goes to IPR-intensive companies is direct evidence that private capital allocates risk investment based on IP protection, not grant support. Eliminating patents in favour of grants removes the mechanism that converts public research into marketable products.

Sources: EUIPO/EPO (2026) · CBO (2021)

3. Even the primary advocates for alternatives accept that patents are irreplaceable for most industries.

Boldrin and Levine’s own 2013 paper explicitly carves out exceptions for pharmaceuticals and sectors with high fixed R&D costs. Every serious prize-system proposal similarly addresses defined failure modes rather than proposing full patent replacement. If the proponents of alternatives themselves accept that patents are irreplaceable for most industrial innovation, the “abolish patents” position dissolves into an argument for targeted complementary reforms — which patent advocates already support.

Sources: Boldrin & Levine (2013) · Kremer (1998), patent buyout model · ScienceDirect (2022)

Patent Critic Myth 10: Ideas Cannot Be “Owned” — Patents Are Philosophically Incoherent

The Critics’ Argument

Thomas Jefferson argued in 1813 that “inventions cannot, in nature, be a subject of property.” Adam Smith condemned exclusive privileges as distortions creating artificial scarcities in non-scarce goods. The libertarian tradition holds that applying property rights to non-rivalrous goods (ideas) is conceptually wrong: unlike physical property, an idea is not diminished by being shared. Musk and Dorsey’s 2025 “delete all IP” position draws directly on this tradition.

Critic sources: Jefferson to McPherson (1813) · Adam Smith, Wealth of Nations · National Law Review (2025)

Why This Myth Is Wrong

1. Patents are not property in the absolute sense — at least in the US, they are a constitutionally grounded social bargain.

Jefferson, while skeptical of permanent monopolies, designed the first US patent act and granted the first US patents. He understood patents not as natural property rights but as deliberate policy instruments. The social contract is explicit: full technical disclosure of the invention in exchange for a bounded, time-limited exclusive right — currently 20 years from filing. The US Constitution (Art. I, Section 8, Clause 8) explicitly authorises Congress to grant this right “to promote the Progress of Science and useful Arts.” This is not owning an idea — it is a temporary licence from the public in exchange for a concrete public benefit: disclosure.

Sources: US Constitution Art. I, Section 8, Cl. 8 · Jefferson to McPherson (1813) · National Law Review (2025)

2. All property rights are social constructs — the philosophical objection proves too much.

The argument that non-rivalrous goods cannot be owned applies with equal force to copyright, trademarks, contractual rights, corporate shares, and financial instruments — none of which involve physical possession. No serious political economist advocates abolishing all of these on philosophical grounds. The relevant question is always whether the social institution produces net benefits. For patents, the empirical record from credible institutional sources — EUIPO/EPO (2026), NBER startup studies, CBO pharmaceutical analysis — strongly answers yes.

Sources: EUIPO/EPO (2026) · General property rights theory

3. The “ideas should be free” argument privileges copiers over creators.

A world where the first inventor bears all R&D costs and every subsequent imitator incurs only marginal production costs is a world that systematically under-invests in invention. This is the standard public goods problem that patent law exists to address. The philosophical critique amounts to arguing that R&D investment deserves no return beyond first-mover advantage — a position that is elegant in theory and catastrophically wrong in practice when R&D timelines are 10 years and first-mover advantages last 18 months. Nordhaus’s 1969 optimal patent model formalised this trade-off, and WIPO’s economic analysis confirms the same logic.

Sources: Nordhaus (1969), optimal patent model · WIPO Economic Development & Patents · CBO (2021)

Patent Critic Myth 11: Patents Favor Large Corporations Over Small Inventors

The Critics’ Argument

Obtaining, maintaining, and enforcing patents requires resources that large firms have and small firms do not. Jörg Sprave, a prolific YouTube inventor with over 30 years of experience with patent lawyers and courts, argues that the best patent attorneys are on retainer at large corporations and unavailable to small inventors, leaving them with below-average counsel and weak patents that create disclosure risk without defensible protection.

Critic sources: Jörg Sprave, Slingshot Channel · National Law Review (2025)

Why This Myth Is Wrong

1. The empirical evidence on startups and patents is overwhelmingly positive.

The NBER “patent lottery” study (Farre-Mensa et al., 2020) used quasi-random assignment of patent examiners to isolate causal effects: obtaining a first patent caused startups to grow 55% faster in employment and 80% faster in sales over five years, increased the probability of VC funding by 47%, increased access to patent-backed loans by 76%, and more than doubled the probability of an IPO. The effect was strongest for first-time founders outside major startup hubs. The EUIPO/EPO Startup Finance study (2023) confirms patent-holding European startups are more than twice as likely to achieve a successful exit.

Sources: Farre-Mensa et al. NBER (2020) · EUIPO/EPO Startup Finance (2023)

2. European fee structures and the SME Fund have substantially reduced access barriers.

The EPO and EUIPO offer up to 65% fee reductions for SMEs and individuals under the EU IP SME Fund. The Unitary Patent (launched June 2023) provides a single registration covering up to 18 EU member states at dramatically lower cost than the sum of national filings, with strong SME uptake: over 75,000 Unitary Patents registered as of December 2025. Also, I am partner of Michalski Hüttermann & Partner and we work for sole inventors and large corporations alike.

Sources: EUIPO SME Fund · Unitary Patent statistics (December 2025) · UPC Agreement

3. A patent is the only legal tool that gives a small inventor the right to stop a large corporation.

Without a patent, a two-person startup that invents a new manufacturing process has no legal mechanism preventing BASF or Siemens from adopting it the next day. Trade secret law requires secrecy, which is incompatible with selling products. Copyright does not protect technical innovations. Only a patent grants a small company the right to send a legally grounded cease-and-desist letter to a Fortune 500 corporation. The critique that patents “favor large corporations” has the causality precisely backwards: it is the absence of patents that definitively and permanently favors large corporations.

Sources: National Law Review (2025) · IPWatchdog, Iancu (2025) · IP Fridays Ep. 143 (Kappos)

Patent Critic Myth 12: Pharma Evergreening Extends Monopolies Beyond Their Legitimate Term

The Critics’ Argument

Pharmaceutical companies make minor, obvious modifications to existing drugs — new dosage forms, new salts, extended-release formulations — and obtain new patents to block generic entry long after the original innovation period has passed. This “evergreening” or “product hopping” extends monopoly pricing without meaningful clinical benefit.

Critic sources: NYT (2022) · R Street Institute (2025) · Common Dreams (2022)

Why This Myth Is Wrong

1. Evergreening is a misuse of a tool — existing reforms address it without abolition.

Both the CBO (2021) and R Street Institute acknowledge that product-hopping and secondary-use patents on minor reformulations are a real concern. But these are practices that existing antitrust law, FDA exclusivity rules, and PTAB inter partes review proceedings are specifically designed to address. The existence of a legal instrument being misused is not an argument for abolishing the instrument — it is an argument for better enforcement.

Sources: CBO (2021) · R Street Institute (2025)

2. Germany’s AMNOG process already neutralises evergreening’s pricing effects without touching patents.

Germany’s mandatory health technology assessment (Nutzenbewertung) under AMNOG requires pharmaceutical companies to demonstrate added therapeutic benefit for any product seeking premium reimbursement. A reformulation or line extension with no meaningful clinical benefit receives only reference pricing. ScienceDirect (2017) confirms: by law, substances without added benefit cannot exceed comparator drug costs.

Sources: AMNOG / Global Legal Insights · ScienceDirect (2017) · PMC AMNOG analysis (2023)

3. Secondary patents on genuinely improved formulations serve a real public benefit.

Extended-release formulations, improved bioavailability profiles, and combination therapies frequently represent genuine clinical value — better tolerability, reduced dosing frequency, lower overdose risk. These are real innovations deserving protection. EPO and DPMA examination standards apply the inventive step test rigorously to secondary claims; those lacking genuine technical advance do not survive examination or opposition.

Sources: EPO examination guidelines on second medical use · Health Affairs (2015)

Patent Critic Myth 13: Patents Historically Concentrated Corporate Power

The Critics’ Argument

US antitrust investigations of the 1930s and 1940s documented how patent pools and cross-licensing arrangements in chemicals, oil, and automobiles concentrated market control and suppressed rivals. Contemporary critics draw a direct parallel to Big Tech’s accumulation of patent portfolios as market-entry barriers against smaller competitors.

Critic sources: Grokipedia, Criticism of Patents · B. Zorina Khan (GMU) historical analysis

Why This Myth Is Wrong

1. The early US patent system was specifically designed to democratise innovation access.

B. Zorina Khan’s economic history work (George Mason University), cited in HBS Nicholas (2013), documents that the early US patent system was deliberately designed to allow farmers, craftsmen, and small entrepreneurs to compete with established manufacturers. The 19th-century US patent system had dramatically higher participation rates from ordinary citizens than the British system, and is credited with driving American industrial development precisely because it was not reserved for well-capitalised incumbents.

Sources:  HBS Nicholas (2013)

2. Modern antitrust law, not patent abolition, is the correct response.

The Standard Oil-era patent pool abuses were addressed not by abolishing patents but by antitrust enforcement: the AT&T consent decree, DOJ actions against chemical industry pools, and subsequent regulations requiring FRAND licensing for standard-essential patents. The EU’s SEP Framework (2024) and ongoing ETSI standardisation governance provide modern instruments for the same problem.

Sources: AT&T consent decree · EU SEP Framework (2024) · FRAND licensing case law

3. Chinese patent accumulation is the most compelling contemporary counter-example.

Chinese companies — Huawei, CATL, BYD, BOE — now assert large, high-quality patent portfolios aggressively in European and US markets. CSIS (2024) and Caldwell Law (2025) document this shift in detail. If Western SMEs abandon patents on historical grounds, they face Chinese competitors with aggressive and enforceable IP portfolios. The asymmetry is not between big corporations and small inventors — it is between a country that takes patents seriously and companies that do not.

Sources: CSIS (2024) · Caldwell Law (2025)

Patent Critic Myth 14: Innovation Happens Perfectly Well Without Patents

The Critics’ Argument

Critics point to industries with rapid innovation where patents play no role: fashion, cuisine, stand-up comedy, open-source software. Historical evidence from the Industrial Revolution shows innovation flourishing with weak patent enforcement. The wheel, the domestication of wolves into dogs — neither required a patent. Innovation is a fundamental human drive that predates and transcends intellectual property systems.

Critic sources: Gizmodo/Earther (2021) · Boldrin & Levine (2013)

Why This Myth Is Wrong

1. Fashion, food, and comedy are sectors with inherently low R&D costs — making them irrelevant to capital-intensive innovation.

The sectors where patents matter most — pharmaceuticals, specialty chemicals, biotech, precision instruments, advanced manufacturing — have development costs in the hundreds of millions to billions, timelines of 5–15 years, and immediate imitability once a product enters the market. As Health Affairs (2015) and CBO (2021) document, in the sectors that matter most for economic growth, patent protection is essential.

Sources: Health Affairs (2015) · CBO (2021)

2. Open-source software is a copyright-based instrument — not evidence against IP.

The Linux kernel and major open-source projects operate under GPL — a copyright licence. The Open Invention Network (OIN) — with 4,100+ member companies and millions of patents — exists specifically to defend Linux from patent aggression using patents as a shield. Microsoft joined OIN contributing its 60,000+ patent portfolio to protect open-source software. Sophisticated open innovators use IP strategically as a defensive tool.

Sources: Open Invention Network · Microsoft OIN membership

3. German Hidden Champions build competitive moats specifically through patent portfolios.

Germany’s approximately 1,300 world market leaders in niche industrial and technology sectors — what Hermann Simon calls “Hidden Champions” — consistently rely on patent portfolios as a core competitive tool. A hydraulic systems manufacturer in the Rhineland cannot maintain a 40% global market share through first-mover advantage alone; Chinese competitors will reverse-engineer the product design within 18 months without legal barriers. The EUIPO/EPO (2026) confirms Germany has above-average shares of patent-intensive employment among major EU economies.

Sources: Hermann Simon, Hidden Champions research · EUIPO/EPO (2026)

Patent Critic Myth 15: Patent Litigation Is Pure Dead-Weight Economic Loss

The Critics’ Argument

Resources spent on patent lawyers, courts, and settlements represent pure economic waste: no goods or services are produced. Bessen and Meurer estimate US NPE litigation cost defendant firms $29 billion per year in direct costs in 2012, destroying $60 billion in aggregate firm value annually. The patent game’s primary beneficiaries, critics argue, are patent offices, patent attorneys, and rent-seeking patentees — not consumers or innovators.

Critic sources: Bessen & Meurer (2014) · Boldrin & Levine (2013)

Why This Myth Is Wrong

1. Litigation cost as a share of value created is negligible.

The EUIPO/EPO (2026) documents that patent-intensive industries generate €7.7 trillion of EU GDP. Even accepting the critics’ largest US litigation cost estimates, the ratio of litigation cost to economic value created by the patent system is well under 0.5%. The vast majority of granted patents are never litigated; they function as signalling instruments, licensing assets, and competitive deterrents without a single court appearance.

Sources: EUIPO/EPO (2026) · R Street Institute (2025)

2. Without patents, disputes would migrate to more expensive and less predictable legal instruments.

Trade secret misappropriation litigation, tortious interference claims, and unfair competition suits are all more expensive and less predictable than patent disputes because the underlying rights are less clearly defined. Patent law’s formal claim definition makes disputes more bounded and resolvable. Countries with weak patent systems have not seen lower IP dispute rates — they have seen higher rates of industrial espionage, misappropriation, and informal competitive conflict.

Sources: NSCAI Report on trade secrets · China IP litigation data · WIPO dispute resolution

3. The option to litigate is what gives a patent its innovation-incentive value.

The NBER patent lottery study (Farre-Mensa et al., 2020) shows that the mere grant of a patent — increasing the credible threat of litigation — causes startup employment and sales to accelerate dramatically, without a single lawsuit being filed. The option value of enforcement, not its actual exercise, is what drives investment decisions. A patent system without enforceable litigation rights is not a reformed system — it is a valueless piece of paper.

Sources: Farre-Mensa et al. NBER (2020)

Patent Critic Myth 16: Gene Patents and “Patents on Life” Are Ethically Objectionable

The Critics’ Argument

Patenting genes, living organisms, seeds, or biological processes raises ethical objections about commodifying nature. The Myriad Genetics breast cancer gene patent — which critics argued restricted access to genetic testing — is the canonical case. Broader objections hold that allowing monopoly rights over biological sequences places private profit above human health and natural heritage.

Critic sources: Gizmodo/Earther (2021) · Wikipedia, Criticism of Patents

Why This Myth Is Wrong

1. Courts have already substantially restricted gene patents on exactly these ethical grounds.

The US Supreme Court’s Association for Molecular Pathology v. Myriad Genetics (2013) held that naturally occurring DNA sequences are not patentable subject matter. The EPO’s Biotech Directive (98/44/EC) and EPC Art. 53 similarly restrict patents on naturally occurring biological phenomena. The ethical concern has been heard and acted upon within the existing legal framework — through targeted judicial and legislative correction, not system abolition.

Sources: Myriad Genetics (2013) · EPO Biotech Directive (98/44/EC) · EPC Art. 53

2. Synthetic and engineered biological innovations are legitimate patent subjects representing billions in R&D.

Critics conflate naturally occurring gene sequences (correctly unpatentable) with synthetically modified DNA, novel CRISPR therapeutic constructs, and engineered proteins — all products of genuine inventive activity. CRISPR-based therapies, mRNA vaccines, and CAR-T cell therapies represent tens of billions of euros in R&D investment that would not exist without patent protection. The Broad Institute’s CRISPR patent portfolio has driven an entire therapeutic industry into existence in less than a decade.

Sources: Broad Institute CRISPR patents · EPO examination guidelines · mRNA vaccine patent case studies

3. EPC Art. 53 already handles genuine ethical boundaries in a legally principled way.

The philosophical objection to patenting living organisms is inconsistently applied: many who oppose pharmaceutical gene patents support plant variety protections for organic agriculture and geographical indications for artisanal food. EPC Art. 53 provides a principled mechanism: inventions whose commercial exploitation would be contrary to ordre public or morality are not patentable. This provision addresses genuine ethical boundaries without requiring the abolition of all biotech patent protection.

Sources: EPC Art. 53 · EPO examination guidelines · TRIPS Art. 27.2

Patent Critic Myth 17 — From Practitioner Experience: Affordable Patent Lawyers Are Not Good Enough — The “Wrong Attorney” Problem

The Critics’ Argument

Jörg Sprave, inventor and YouTube creator with over 30 years of experience dealing with patent lawyers and courts, argues that the best patent attorneys are on retainer at large corporations and unavailable to small inventors. The affordable ones lack the technical and legal depth to draft bulletproof applications. The result: small inventors end up with weak patents that create disclosure risk without defensible protection — a worse outcome than not filing at all.

Critic sources: Jörg Sprave, Slingshot Channel (YouTube)

Why This Myth Is Wrong

1. The problem is real — but it proves the need for better attorney selection, not patent abolition.

Sprave is correct that attorney quality dramatically affects outcomes — and that a bad patent is worse than no patent. But this is true of every professional service: the wrong surgeon, architect, or tax advisor produces bad results. The solution is not to abolish the profession — it is to choose the right professional for your situation. An SME company or independent inventor who selects an attorney with sector-specific expertise, a track record at the EPO or DPMA, and experience with SME clients will have a fundamentally different experience than one chosen on cost alone. The IP Fridays podcast has addressed exactly this selection challenge across multiple episodes.

Sources: IP Fridays podcast · EPO attorney directory · Patentanwaltskammer

2. European patent attorneys meet mandatory state qualification standards.

Becoming a European Patent Attorney (EPA) or German Patentanwalt requires passing the European Qualifying Examinations (EQE) or the German state examination — multi-year, technically and legally rigorous processes with low pass rates. The DPMA Patentanwaltsordnung mandates continuing professional education and ethical compliance. Sprave’s experience reflects a US context where entry requirements are substantially lower.

Sources: EPO EQE structure · DPMA Patentanwaltsordnung

3. The cost of quality prosecution is recoverable many times over.

A well-drafted patent with strong claims creates a quantifiable asset. The Farre-Mensa NBER study shows a first patent more than doubles a startup’s IPO probability. The EUIPO/EPO startup finance study (2023) shows patent-holding startups are more than twice as likely to achieve a successful exit. For a typical EPO prosecution — a mechanical or chemical case running €8,000–€15,000 through grant — these represent a highly favourable return on investment.

Sources: Farre-Mensa et al. NBER (2020) · EUIPO/EPO Startup Finance (2023) · EPO official fee calculator

Patent Critic Myth 18 — From Practitioner Experience: Disclosure Without Enforcement Is the Worst Possible Outcome

The Critics’ Argument

Jörg Sprave identifies a specific practical trap: patent law requires public disclosure of the invention in sufficient technical detail. If the patent is not granted, is successfully challenged, or cannot be enforced — particularly against overseas manufacturers — the inventor has handed competitors a detailed blueprint at no cost to them. The small inventor ends up with no monopoly protection but full public disclosure: the worst of all worlds.

Critic sources: Jörg Sprave, Slingshot Channel (YouTube)

Why This Myth Is Wrong

1. This is an argument for strategic IP planning, not against patents.

Sprave’s concern is valid as a risk management point but reaches the wrong conclusion. Patents filed primarily as business development signals — VC fundraising, licensing negotiation, deterrence — do not need to be enforced to generate substantial value. The NBER patent lottery data quantifies this precisely: the mere grant of a patent accelerates startup growth dramatically, without a single enforcement action. A patent without an enforcement strategy needs a defensive purpose to justify filing — which is exactly what experienced patent counsel assess before recommending filing.

Sources: EUIPO/EPO Startup Finance (2023) · NBER patent lottery (2020)

2. Trade secrecy offers no better protection for manufactured products.

An inventor who keeps a physical product secret gains nothing once it is commercially released: a competitor can buy it, reverse-engineer it, and copy it legally — because there is no patent to infringe. Trade secrecy protects only processes that cannot be reverse-engineered — a far narrower category. For a crossbow design that can be purchased and examined, or a machine component that can be measured and replicated, secrecy provides zero protection the moment the product enters the market.

Sources: IP law doctrine on reverse engineering · DPMA patent strategy guidance

3. Defensive publication provides a third path — block competitors without enforcement burden.

An inventor who does not wish to enforce a patent but wants to prevent others from patenting the same invention can file a patent application and allow it to publish — creating prior art that permanently blocks competitors from obtaining their own patents on the same technology. Alternatively, a simple defensive publication in a searchable database such as IP.com can be submitted at minimal cost. This deprives competitors of a weapon without requiring the inventor to pay prosecution and maintenance fees for an enforced right.

Sources: Wikipedia · DPMA patent strategy guidance

Patent Critic Myth 19 — High Practical Relevance for Manufacturers: Patents Are Unenforceable Against Chinese Manufacturers

The Critics’ Argument

Even a validly granted patent in the US or EU provides no meaningful protection against Chinese manufacturers. Chinese courts do not enforce foreign patents on behalf of foreign inventors. Customs seizures intercept only a fraction of infringing goods. Jörg Sprave describes watching identical copies of his products appear on AliExpress shortly after launch, with no practical recourse.

Critic sources: Jörg Sprave, Slingshot Channel · WIPO / USTR IP enforcement reports

Why This Myth Is Wrong

1. China’s IP enforcement has improved dramatically and Chinese companies now have a direct interest in reciprocal enforcement.

China overhauled its Patent Law in 2020 (fourth amendment), established specialised IP courts in Beijing, Shanghai, Guangzhou, and Chengdu, raised damage awards substantially, and has been actively enforcing foreign patent rights. Between 2016 and 2020, IP litigation in China tripled. Emerald Publishing (2024) documents these reforms. Chinese companies like Huawei and CATL now assert large patent portfolios aggressively in European courts — giving them a direct economic interest in Chinese courts’ reciprocal enforcement of European patents. “Patents are worthless in China” was a reasonable description of 2005. It is no longer accurate in 2025.

Sources: China Patent Law 4th Amendment (2020) · Emerald Publishing China IP reform (2024) · CSIS (2024)

2. European and German enforcement protects the SME’s core markets regardless of China.

A German Hidden Champion selling precision components primarily in Germany, the EU, the US, and Japan does not need Chinese patent enforcement to benefit substantially from a European patent portfolio. Chinese-manufactured copies infringing a valid EP or DE patent cannot be imported into the EU without triggering customs seizure under EU Customs Enforcement Regulation (608/2013), border measures, and EU market exclusion.

Sources: EU Customs Enforcement Regulation (608/2013) · EUIPO Anti-Counterfeiting Database · EUIPO/EPO trade surplus data (2026)

3. Abandoning European patents because China enforcement is imperfect is a category error with serious competitive consequences.

European patent protection stops Chinese competitors from selling infringing products in Germany, France, or across 18 EU countries under the Unitary Patent. This is precisely why Chinese companies file hundreds of thousands of patent applications at the EPO. Caldwell Law (2025) states plainly: “In 2025 and beyond, your IP strategy is your geopolitical strategy.” Unilateral disarmament is not a competitive strategy.

Sources: EPO filing statistics from China · Caldwell Law (2025) · EUIPO Anti-Counterfeiting Database

Patent Critic Myth 20 — From Practitioner Experience: Defending Patents Destroys Inventors Financially — The Goodyear Precedent

The Critics’ Argument

Charles Goodyear — inventor of vulcanised rubber and the sixth inductee into the US National Inventors Hall of Fame — died penniless after spending his resources defending his patent. The Goodyear Company later appropriated his name without compensation. Jörg Sprave cites this as a narrative archetype: the inventor who holds a valid patent on a genuinely important innovation but is financially destroyed by the cost of defending it. Legal protection on paper is worth nothing when enforcement costs exceed an inventor’s resources.

Critic sources: Jörg Sprave, Slingshot Channel · Charles Goodyear historical record

Why This Myth Is Wrong

1. The Goodyear case is 180 years old and predates every modern procedural protection for inventors.

Charles Goodyear litigated in the 1840s and 1850s — before the America Invents Act, before IPR proceedings, before litigation funding, before fee-shifting provisions. Citing Goodyear as evidence against the modern patent system is equivalent to citing 1840s surgical mortality rates as evidence against modern medicine. The modern litigation environment in Germany includes e.g. the Düsseldorf and Munich patent chambers with streamlined proceedings, preliminary injunctions available within weeks, and predictable cost structures. IP Fridays Episode 169 (Prof. Hüttermann on the UPC) provides an excellent current overview.

Sources:  IP Fridays Ep. 169 (Hüttermann, UPC)

2. Patent litigation funding now exists specifically to equalise financial asymmetry.

Third-party patent litigation funding — from firms like Burford Capital, Deminor (active in Germany), and Bentham IMF — allows small inventors and SMEs to enforce valid patents against large infringers without bearing all costs upfront. The funder covers prosecution costs in exchange for a share of damages or settlement proceeds. This development, less than 20 years old, directly addresses the financial asymmetry Goodyear experienced.

Sources: Burford Capital · Deminor (Germany) · Bentham IMF

3. IP insurance eliminates the financial destruction risk Goodyear faced.

IP insurance products — available in Germany from Allianz, HDI, and specialist IP insurers — cover legal costs of both patent enforcement and defense. Combined with a well-drafted patent from qualified counsel, IP insurance eliminates the catastrophic downside risk that made Goodyear’s situation possible. The lesson from Goodyear is not “don’t patent” but “build an IP strategy with the full range of modern risk management tools.” That is precisely what experienced patent counsel provide.

Sources: German vs. US IP insurance comparison

Patent Critic Myth 21 — Institutional/Niche: EUIPO Expansion Into Patents Is Institutional Overreach

The Critics’ Argument

Some critics argue that the EUIPO’s potential expansion into patent-adjacent services represents institutional overreach that could further entrench bureaucratic IP structures and duplicate functions already performed by the EPO, creating competing standards, higher costs, and added complexity for applicants. Former USPTO Director David Kappos raised aspects of this in IP Fridays Episode 143.

Critic sources: IP Fridays Ep. 143 (David Kappos)

Why This Myth Is Wrong

1. The Unitary Patent is the answer to this concern — and it is working.

The Unitary Patent (launched June 2023) and the Unified Patent Court (UPC) provide a single patent right covering up to 18 EU member states, administered by the EPO with judicial oversight by the UPC — not the EUIPO. This is the result of decades of multilateral treaty negotiation designed precisely to reduce fragmentation and cost. The EPO has reported over 75,000 Unitary Patents registered since launch, with strong SME uptake. Single filing, single annuity, single revocation procedure.

Sources: UPC Agreement ·  IP Fridays Ep. 143 (Kappos)

2. The EUIPO’s SME Fund reduces barriers rather than creating them.

The EUIPO’s IP SME Fund has provided hundreds of millions of euros in grant support for SMEs seeking IP registration, including patent-related services at the EPO. This is not bureaucratic expansion — it is a deliberate policy to democratise IP access for companies that cannot otherwise afford protection.

Sources: EUIPO SME Fund · EUIPO/EPO (2026)

3. Institutional coordination between EUIPO and EPO improves consistency, not duplication.

The five joint EUIPO/EPO industry-level IP contribution studies — the most recent covering 2021–2023, published January 2026 — have produced the most comprehensive economic data on IP and innovation that European policymakers possess. Coordination between the two offices on SME support, startup finance data, and enforcement has demonstrably improved the European IP ecosystem’s responsiveness to smaller innovators.

Sources: EUIPO/EPO (2026) joint study · EPO/EUIPO cooperation framework

Patent Critic Myth 22 — The Libertarian/Austrian School Argument: Patents Are Aggression Against Tangible Property Owners — The Kinsella Argument

The Critics’ Argument

N. Stephan Kinsella’s monograph Against Intellectual Property (Journal of Libertarian Studies, 2001; Mises Institute, 2008) presents the most philosophically rigorous libertarian case against patents. His argument is not primarily economic — it is structural. Kinsella begins from the Austrian/libertarian premise that property rights arise from scarcity: we need property rules only for rivalrous resources, because conflict over non-scarce goods is impossible. Ideas, unlike land or physical objects, are non-scarce — my use of an idea does not diminish your ability to use it simultaneously. Therefore, Kinsella argues, IP rights are not genuine property rights at all but state-granted monopoly privileges.

His second and sharpest argument is that patents are not merely a failure to protect something — they are an act of aggression against innocent third parties. When A holds a patent, A can prevent B from manufacturing a product using only B’s own labor, B’s own materials, and B’s own machines, even if B independently arrived at the same idea. The patent does not just protect A’s physical property; it gives A a legally enforced veto over what B does with B’s physical property. He also rejects the labor-theory-of-IP argument on the grounds that creation is categorically different from homesteading scarce physical resources, which is the only legitimate origin of property under the Lockean framework he applies.

Critic sources: N. Stephan Kinsella, Against Intellectual Property, Mises Institute (2008) · Murray Rothbard, Man, Economy, and State (1962) · Tom Palmer, Harvard Journal of Law & Public Policy 13 (1990)

Why This Myth Is Wrong

1. The scarcity argument proves too much — it would also eliminate contract, corporate, and financial property rights.

Kinsella’s framework holds that property rights can only attach to rivalrous, scarce physical resources. But this standard, applied consistently, would eliminate many property rights that Kinsella himself presumably accepts: the right to future performance under a contract (no physical resource is held), equity shares in a corporation (which represent a claim on an abstract legal entity, not a specific physical object), a bank deposit (which is a claim against the bank’s balance sheet, not specific banknotes), or a licence to use land. All of these involve enforceable rights over non-physical or abstract entitlements backed by state coercion. If “only scarce physical resources can be owned” is the test, then modern commercial law — which Kinsella does not propose to abolish — fails it comprehensively. The relevant question is not whether an idea is non-rivalrous in the abstract, but whether a legally defined exclusive right over its commercial exploitation produces net social benefits — which, as the EUIPO/EPO data and NBER startup studies demonstrate, it demonstrably does.

Sources: General property rights theory · EUIPO/EPO (2026) · Farre-Mensa et al. NBER (2020)

2. The “aggression against tangible property owners” argument mischaracterises what a patent actually does.

Kinsella’s most powerful claim is that a patent gives the patent holder a veto over what third parties do with their own physical property — and that this constitutes aggression. The argument is rhetorically striking but analytically incomplete. All property rights constrain what others can do. My ownership of a piece of land prevents you from walking across it using only your own legs and your own time. My copyright prevents you from using your own printing press on your own paper to reproduce my text. Contract law prevents you from using your own labour in ways that breach your commitments. In each case, a legally recognised right restricts a third party’s use of their own physical resources — yet Kinsella does not characterise land ownership, copyright, or contract as “aggression.” The principle that “all my actions using only my own property must be unrestricted by others” is not a coherent foundation for any legal order, because it ignores the relational nature of all rights. What makes a restriction legitimate is not the absence of physical contact but the justice of the underlying right — and patent law’s underlying right is grounded in the constitutional quid pro quo of disclosure for temporary exclusivity, a social bargain with demonstrable public benefits.

Sources: US Constitution Art. I, Section 8, Cl. 8 · National Law Review / Sedona Conference (2025) · General jurisprudence of property rights

3. The independent invention argument is answered by the patent’s disclosure bargain — and by the practical alternative.

Kinsella argues that it is unjust to prevent B from independently inventing the same thing as A and using it freely. This has surface appeal, but consider the practical consequence of a “no patent for any invention someone else might independently reach” rule: inventors would abandon disclosure entirely in favour of perpetual trade secrecy. If A can protect the invention only by keeping it secret, A keeps it secret. B, who independently arrives at the same invention, also keeps it secret. The public receives no technical disclosure, no ability to design around, no certainty about freedom to operate, and no expiry after 20 years. Notably, Kinsella himself acknowledges in his paper (pp. 11–12) that a competitor who independently invents the subject of a trade secret can patent it and prevent the original inventor from using the invention — inadvertently making the pro-patent case that a patent system with defined terms and mandatory disclosure is preferable to perpetual trade secrecy.

Sources: Kinsella (2008), trade secret discussion pp. 11–12 · NSCAI Final Report, Ch. 12 · WIPO Economic Development & Patents

Verdict: What the Evidence Actually Shows

Twenty-two arguments against patents. Not one of them, examined carefully against the available evidence, makes the case for abolition. Several — NPE abuse, low-quality patent grants, and the wrong-attorney problem — identify real pathologies that deserve targeted reform. Some initiatives by patent applicants such as the Industry Patent Quality Charter IPQC address these issues as well. Others rest on philosophical premises that prove too much, historical examples too old to be probative, or sector-specific observations generalized into universal claims.

The Numbers Are Unambiguous

The EUIPO/EPO joint study (2026) — the most comprehensive measurement of IP’s economic role ever conducted in Europe — found that patent-intensive industries alone account for 18.4% of EU GDP and 11.8% of employment. IPR-intensive industries as a whole generate 47.9% of EU GDP, employ 65 million people at wages 40.9% above the EU average, account for 78.3% of EU exports, and attract 88% of all European venture capital. Germany, with its Hidden Champions and engineering SME, has above-average shares of patent-intensive employment among major EU economies. These industries did not achieve this by accident. They achieved it by treating patents as operational assets, not theoretical constructs.

For Startups, the Evidence Is Equally Clear

The NBER patent lottery study (Farre-Mensa et al., 2020) — which used quasi-random assignment of patent examiners to establish causality, not just correlation — found that a first patent causes startups to grow 55% faster in employment and 80% faster in sales over five years, increases VC funding probability by 47%, increases access to patent-backed loans by 76%, and more than doubles the probability of an IPO. The effect is largest for first-time founders outside major startup hubs. The EUIPO/EPO startup finance study (2023) confirms that patent-holding European startups are more than twice as likely to achieve a successful exit. For an SME company raising growth capital or preparing for an M&A process, this is not an abstract point.

The Geopolitical Dimension Has Changed Everything

The patent critics’ arguments were largely developed in an academic context where the relevant comparison was between US and European innovators operating in similar IP environments. That world no longer exists. China overtook the US as the leading PCT filer at WIPO in 2019. Huawei, CATL, BYD, and hundreds of Chinese SME equivalents now assert patent portfolios aggressively in European markets. CSIS (2024) documents that every weakening of US patent rights has created a strategic vacuum that China’s deliberate IP strengthening strategy is designed to exploit. A European SME that dismisses its own patent portfolio as a bureaucratic expense while its Chinese competitors file aggressively at the EPO is not being skeptical — it is being strategically naïve.

What the Critics Get Right — and Why Reform Is Not Abolition

The patent critics’ most important contribution is keeping the system honest: demanding quality examination, resisting legal complexity, exposing NPE abuse, pushing for better enforcement reform. The PTAB was created, in part, because quality concerns were real. The Alice decision addressed legitimate software patent overreach. Germany’s AMNOG system proves that patent-enabled drug development and patient-affordable pricing can coexist, given the right downstream market regulation. None of these reforms require abolition. They require precision. Between “the system has real problems” and “delete all IP law” lies a very long road — and the evidence does not support the journey.

The Practical Conclusion for Companies

If you run or advise a company, the patent critics’ arguments — however intellectually interesting — do not describe your competitive reality. Your reality is: a competitor can copy your product design in 18 months. A larger company can adopt your production process the day you sell your first product without patent protection. A venture investor or strategic acquirer will discount your company’s value substantially if your technology is unprotected. Your most important asset — the engineering knowledge embedded in your products and processes — is exactly the kind of IP that patents exist to protect. The question is not whether patents are perfect. They are not. The question is whether the alternative — trade secrecy, first-mover advantage, and hope — is better. It is not.

Patents are good. Use them.