Wednesday, April 4, 2018

Tun-Jen Chiang: Can Patents Restrict Free Speech?

Guest post by Jason Reinecke, a 3L at Stanford Law School whose work has been previously featured on this blog.

Scholars have long argued that copyright and trademark law have the potential to violate the First Amendment right to free speech. But in Patents and Free Speech (forthcoming in the Georgetown Law Journal), Professor Tun-Jen Chiang explains that patents can similarly restrict free speech, and that they pose an even greater threat to speech than copyrights and trademarks because patent law lacks the doctrinal safeguards that have developed in that area.

Professor Chiang convincingly argues that patents frequently violate the First Amendment and provides numerous examples of patents that could restrict speech. For example, he uncovered one patent (U.S. Patent No. 6,311,211) claiming a “method of operating an advocacy network” by “sending an advocacy message” to various users. He argues that such “advocacy emails are core political speech that the First Amendment is supposed to protect. A statute or regulation that prohibited groups from sending advocacy emails would be a blatant First Amendment violation.”

Perhaps the strongest counterargument to the conclusion that patents often violate free speech is that private enforcement of property rights is generally not subject to First Amendment scrutiny, because the First Amendment only applies to acts of the government, not private individuals. Although Professor Chiang has previously concluded that this argument largely justifies copyright law’s exemption from the First Amendment, he does not come to the same conclusion for patent law for two reasons.

First, unlike with copyright, every issued patent is the product of governmental action. Since the only state action for copyright “occurs at the level of the overall copyright system, the proper First Amendment question is whether the copyright system as a whole contravenes First Amendment principles.” Conversely, state action occurs twice in patent law: first in the creation of the statutory patent system, and second during the examination and issuance of individual patents by the PTO. Thus, First Amendment scrutiny can reach each individual patent. And second, even property law must yield to the First Amendment where any given actor occupies so much property that the actor forecloses all reasonable alternative avenues for expression, as in Marsh v. Alabama. Copyright law includes doctrinal limits that restrict ownership power, such as idea/expression, fair use, and the copying requirement. But patent law includes no such limits.

Professor Chiang concludes with two proposals to reduce free speech concerns in patent law. He first proposes that we should simply apply conventional First Amendment scrutiny to patents as if the claims were a statute or regulation. He believes that this proposal works best where patent claims facially restrict content (such as in the example provided above). But the proposal is less desirable where the problem is excessive ownership power coupled with discriminatory enforcement, because (a) the only remedy would be to completely invalidate the patent, and (b) the First Amendment may not apply because the problem is power with discriminatory enforcement, not the PTO’s decision to issue the patent (as described above, First Amendment scrutiny can only reach the analytical levels at which state action occurs).

Professor Chiang’s second proposal accommodates this problem of excessive power coupled with discriminatory enforcement. Drawing on First Amendment jurisprudence related to time, place, or manner regulations, Professor Chiang argues that patent law should be modified to include a fair use doctrine as well as a broader misuse doctrine. His conception of the misuse doctrine would cover discriminatory enforcement of patents based on the infringer’s speech content or viewpoint. I strongly urge readers to take a look at this terrific article, including Part IV, which outlines his persuasive proposals in greater detail.

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