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96 Wash. U. L. Rev. 197 (2018-2019)
Patents and the First Amendment

handle is hein.journals/walq96 and id is 209 raw text is: Washington University Law Review VOLUME 96 NUMBER 2 2018 PATENTS AND THE FIRST AMENDMENT* DAN L. BURKt ABSTRACT Patents are intended as a means ofpromoting innovation through private pecuniary incentives. But the patent system has for some time been on a collision course with guarantees of expressive freedom. Surprisingly, no one has ever subjected patent doctrine to a close First Amendment analysis. In this paper I show, first, that patents clearly affect expressive freedom; second, that patents are subject to legal scrutiny for their effect on expressive rights; and third, that patents are not excused from scrutiny by virtue of constituting property rights or by virtue ofprivate discretion. After examining the patent system in terms offamiliar First Amendment metrics such as strict scrutiny, narrow tailoring, governmental interest, and least restrictive means, I conclude that even though many patents may survive First Amendment analysis, many will not. 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.+ • Copyright 2017-18 by Dan L. Burk. t Chancellor's Professor of Law, University of California, Irvine. My thanks to Zackory Burns, Alex Camacho, Seth Davis, Stephen Lee, Leah Litman, Jonathan Glater, and Ted Sichelman; to Elvin Lee and the participants in the Stanford Law School/Mozilla April 17, 2017 forum Should Patent Law Be a First Amendment Issue?; and to participants in the October 11, 2017 Oxford Internet Institute Departmental Seminar for helpful discussion in the formulation of this article. I Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307 (Fed. Cir. 2016) (Mayer, J., concurring).

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