Every day, in many areas of life, there are important races occurring. There is a race to develop a vaccine for COVID-19. There is a race to perfect cars that can drive themselves. There is a race to expand the availability of 5G … and to develop the next wireless communications technology — 6G?

Innovative companies are expending great amounts of research dollars and human capital to participate in these races with the hopes of being part of the “winning team,” but the real winner when these technologies come to fruition is the public. Although the public may be desperately interested in obtaining the technology from these races — new inventions that make life better — a number of obstacles are regularly being introduced that hinder innovative companies ability and desire to participate. It’s time to stop hamstringing the competitors.

The competitors in these races are willing to spend millions of dollars developing new technologies and millions more innovating and commercializing the products and systems that incorporate these technologies. In exchange, these companies often seek patents on their inventions. By getting a patent on a new technology, the innovative company can then ensure it has a limited monopoly to make and sell the product itself or, as is more often the case, the company can license the technology to other companies to use.

In either case, the innovative company can then recoup some of those costs associated with participating in the race and, ideally, have money to invest in future races, or inventive and innovative efforts. If these companies cannot rely on patent law as a way to protect their investments in these areas, they may stop competing in these races altogether.

Although the obstacles facing innovative companies can come from anywhere, it is particularly concerning when it is the U.S. government that is trying to impede a competitor’s success. One example of this is the case of the Federal Trade Commission v. Qualcomm.

The FTC had filed a lawsuit against Qualcomm in January 2017, alleging that the company’s behavior in licensing its patents was anticompetitive. Essentially, this case was about using competition law, or antitrust, to impede a competition or the race for new technology.

In May 2019, the district court judge in the case issued an opinion finding Qualcomm’s behaviors caused anticompetitive harm, in part because the company had breached a duty to deal with its competitors. After winning the technology race, apparently the winner was supposed to go back and help its competitors to get ahead of itself. What is the point of racing if you are not allowed to get ahead of your