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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


                           DAN L. BURKt


   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

   • 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.,

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