About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

15 Duke J. Const. L. & Pub. Pol'y 1 (2020)

handle is hein.journals/dukpup15 and id is 1 raw text is: PATENTS AND STATE CONSTITUTIONALLY PROTECTED SPEECH DAN L. BURK* ABSTRACT Recent American patent scholarship has begun to explore the intersection of the patent system and guarantees of expressive freedom, noting that patents may impinge on the First Amendment to the Federal Constitution and chill or prohibit protected speech. But guarantees of expressive freedom are not limited to the Federal Constitution; they are also found in state constitutional provisions, some of which offer broader protection than that guaranteed in the First Amendment. In this essay I examine the relationship between federally issued patents and the guarantees of expressive freedom found in state constitutions. State constitutions vary in their wording and interpretation, so my primary focus will be on those states that have viewed their state constitutional provisions as extending beyond the protections offered by the federal First Amendment. While the Supremacy Clause prevents states from overriding federal patent law, I argue here that state constitutional provisions can alter, shape, or even prohibit certain types of patent assertions, just as state law may moderate other uses of personal property. The discussion of this interaction highlights several previously unexplored aspects of the vertical relationship between federal patent policy and state law, and offers an alternative route to vindicating expressive rights encumbered by patents. Copyright @ 2020 Dan L. Burk. * Chancellor's Professor of Law, University of California, Irvine.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most