In a case before the U.S. Supreme Court that could make it easier for defenders in infringement lawsuits to invalidate complainant's patents Microsoft has argued that the current "clear and convincing evidence" standard impedes innovation because companies either cannot develop combinations of their own technology with the technology that has been patented improperly or must pay licensing fees that could have been spent on R&D instead. However, that effect is no different in the case of properly awarded patents therefore leading to the conclusion, if we buy Microsoft's argument, that all patents are actually harmful to innovation.
The argument is an interesting half-truth because patents have a mixed effect on innovation, simultaneously providing increased incentive and decreased opportunity for it.
What I continue to question is the assumption that whatever the actual net increase in innovation is that may actually be due to patents that it outweighs having to endure the usual costs and injustices attendant upon the existence of any governmentally protected monopoly. Innovation is not an unlimited good for which we should be prepared to pay any price. The direct cost, (setting aside indirect costs), we pay is obscured by it being packaged with the price of the goods incorporating the patented technology. Injustices occur not least because of the occasional independent co-inventors who instead of receiving a reward for their honest work are legally disenfranchised from their claims upon it.