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The Founding Fathers ensconced intellectual property rights into the fabric of the original Constitution. Article I, Section 8, Clause 8, of the United States Constitution grants Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," and it is that provision that gives Congress the power to authorize and regulate patents and copyrights. (Congress’ power to authorize and regulate trademarks is separately derived from the Constitution’s Commerce Clause.)

Three years after ratification of the Constitution, we adopted the First Amendment. As with any amendment, it is a limitation on the original grant. And in case anyone forgot that the First Amendment might limit IP rights, Judge Mayer of the Federal Circuit just reminded us in his blistering concurrence in Intellectual Ventures v. Symantec. The case involved patents regarding software virus protection, and Judge Mayer went much further than his colleagues in questioning not only whether software is eligible patent matter, but fundamentally whether allowing patents in the area raises fundamental free speech concerns. You be the judge:

[T]he Constitution protects the right to receive information and ideas. . . . This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citations omitted). Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) (“The distinction between laws burdening and laws banning speech is but a matter of degree.”); see also In re Tam, 808 F.3d 1321, 1340 (Fed. Cir. 2015) (en banc) (explaining that the government may impermissibly burden speech “even when it does so indirectly”).


Suppression of free speech is no less pernicious because it occurs in the digital, rather than the physical, realm. “[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 (2011) (citations and internal quotation marks omitted). Essential First Amendment freedoms are abridged when the Patent and Trademark Office (PTO) is permitted to balkanize the Internet, granting patent owners the right to exact heavy taxes on widely-used conduits for online expression."

Given that the Supreme Court just took up the In re Tam case (which deals with trademarks and First Amendment rights), expect to see more First Amendment scrutiny and arguments in IP cases in the future. Hat tip to David O’Neill, CEO of APImetrics, for bringing this concurrence to my attention.

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