Blocking Patents and Political Protest
I said before the holidays that I would do a series of posts about the free speech implications of patents. One way to think about this issue is that a patent owner could restrict the use of a device or a tactic to those with an “approved” message (for example, liberals). It’s a kind of viewpoint discrimination, to use the First Amendment parlance.
Another way to think of this is that a patent could be acquired for the sole purpose of stopping certain kinds of expression. You could call this content discrimination or a sort of blocking patent. I think this is really troubling once it’s combined with the expansion of patentable subject matter to business methods. Here is an illustration:
Imagine that in 1960 business methods were patentable. A segregationist group that is thinking outside of the box decides to apply for a patent on sit-in protests. The patent is granted. When the civil rights activists in Greensboro start their demonstration (at the lunch counter depicted above at the Smithsonian), they are sued for infringement.
Today, this is not an implausible scenario. The question is not whether such a patent would be upheld by a court (probably not on non-obviousness grounds). The question is whether a patent examiner could be convinced to issue the patent (probably yes). That patent could then be used to bankrupt and harass people who are trying to exercise their First Amendment rights.
Interestingly enough, something analogous did happen in the 1960s. Libel law, which is after all private law, was used in New York Times v. Sullivan to chill civil rights speech. The Court responded by holding that the enforcement of libel law by courts constituted state action for First and Fourteenth Amendment purposes. If patent law had been used in the way that I’ve described above, would there have been a similar result?