Do Patents Abridge the First Amendment Guarantee of Free Speech?

Abstract

In a recent software patent case, Judge Mayer of the Federal Circuit wrote a concurring opinion in which he asserted that “patents constricting the essential channels of online communication run afoul of the First Amendment.” Arguments in line with Judge Mayer's view have been advanced in every significant § 101 case at the Supreme Court since 2005. Despite this steady barrage of First Amendment invocations, the Court has thus far declined to respond. At the same time, these cases were invariably decided in favor of the party for whom the First Amendment argument was made. This raises the question: Is there some merit to the proposition that patent rights must give way to free speech rights? Judge Mayer submits that the answer is yes. For the reasons discussed in this paper, however, Judge Mayer’s opinion is misguided. Patents — even those that unambiguously affect speech — are immune from First Amendment scrutiny, which is to say that courts can (and should) summarily dispose of First Amendment challenges to patent rights without trudging through First Amendment doctrine. And even if patents were subject to First Amendment scrutiny, they would emerge unscathed.