Patents and Free Speech


There is an enormous literature on the intersection between the First Amendment and various IP regimes such as copyright and trademark. This literature generally omits patent law from the argument, reflecting an implicit assumption that patent protection poses no threat to free speech.

This assumption is wrong. As the Article will explain, patents can restrict free speech just like copyrights and trademarks. Indeed, patents pose a greater threat to speech than copyrights and trademarks: Precisely because people assume that patents pose no threat to speech, patent law has developed none of the doctrinal safeguards for free speech that copyright law and trademark law has.

This Article makes two contributions. First, it makes the point that patents are not exceptional and raise the same free speech issues as the rest of IP law. Second, it proposes some doctrinal limits on patent protection in order to mitigate the speech-restrictive effects of patent law.