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?

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11 Responses

  1. Kent says:

    If I understand correctly, Sullivan imposed a standard of “actual malice” to get around the abuse of libel law.

    If the rubric was applied in the patent situation above there would have to be some burden imposed on the patent holder to prove malice toward the patent holder. Which may translate into proving that there was some intent to benefit financially by the offending parties which harmed the patent holder’s ability to benefit from their patent.

    Not sure how this would jive with unauthorized use of a more conventional patent…

    Disclaimer: I know almost nothing about IP.

  2. Josh says:

    Message and method; Sullivan represented the use of libel law to proscribe a message entirely, no matter the method of communication (so long as there was a public communication, at any rate) while a hypothetical viewpoint-discriminating patent would be a proscription of a method, no more worrisome than a TV station deciding what ads it wished to run. I don’t think there is a similar result to the one in Sullivan because they’re not really analogous problems.

    It is possible that a patent could be so broad as to completely foreclose a specific message (for example, the sit-in patent might possibly be that broad). I think the better analog here (for reasons primarily deriving from the explicit grant and delimitation of rights and the source of the constitutional grant of rights) is the use of copyright law to suppress or control expression; similarly to how speech concerns are treated there, I would expect that patent law would develop a “fair use” doctrine mirroring that doctrine in copyright.

  3. Gerard Magliocca says:

    Right. So I’m wondering if patent misuse doctrine should be adapted to limit the use of patents that significantly burden expression. Not sure yet.

  4. C.T. says:

    Another hypo that is not outside the realm of possibility, and one that implicates patent law, copyright law, and the First Amendment!

    Scenario: The RIAA secures a patent on BitTorrent technology and prevents consumer uses of the technology in an effort to reduce online piracy.

  5. I don’t know if patenting methods of civil disobedience would exactly discourage the activity. It’s civil disobedience because it’s against the law.

    It’s an interesting concept, though: Say Facebook is the de facto standard for social networking, and maintains its status as the de facto standard by using patents to stop any competitor from obtaining a significant market share. Facebook therefore becomes a gatekeeper for any communication that takes place via social networking, and could theoretically ban people it disagrees with.

    Of course, Facebook’s size already makes it the de facto standard for social networking (in the US, anyway), and it already can do this sort of thing via its Terms of Use regardless of whether patents come into play or not.

  6. A.J. Sutter says:

    As to David’s first point: Right on!®

    As to his last, using Ts&Cs is also a lot cheaper than using patents, too: consider, e.g., all the fees involved in issuance and maintenance of a patent. OTOH, the impact is much more limited: Ts&Cs limit only those activities on Facebook, whereas a patent could (accepting Gerard’s hypothesis, for the moment) block activity on all sites.

    As for Gerard’s hypothetical generally, it may be a good reason to disallow business method patents — though I’m not convinced that a sit-in protest is a business method anyway. Nor am I convinced that the vision of patent rights trumping Constitutional ones is at all realistic. Just because the government has Constitutional authority to issue patents generally doesn’t mean that the rights granted to a patent holder have the same status as those described in the First Amendment. So the “problem” seems rather contrived and artificial.

    Of course the abuse and harassment Gerard describes is always possible — just as the mere existence of, say, civil rights laws doesn’t prevent people from violating them. There isn’t anything particularly unique about abuse of patents in this regard. Abuse of copyright is already a common occurrence.

  7. A.J. Sutter says:

    (To amplify, based on Gerard’s subsequent reference to “patents that significantly burden expression” — this should be an oxymoron: to the extent any patent significantly burdens expression, it should be invalid, since a patentholder’s rights are lesser than the First Amendment rights of the alleged infringer. Or has the Roberts Court changed that too, in the time I’ve been living outside the US?)

  8. Good information provided about the Patent and Political Protest, i m really wondered to read such nice useful points shared Thank you very much.

  9. Thinker says:

    I’m sorry, but I see too many flaws in the hypo. Firstly, clearly one can’t patent away the freedom to assembly. Secondly, hard to argue this is a business method patent when the activity is clearly non-commercial.

    If I could bring up a boring example from years past, what if I patented a method of communication which amplifies the voice through a mobile or hand held device. Sound trucks and megaphones were the primary method of true speech in years gone by. It means that I can have an assembly, but I can’t be heard.

  10. arthur says:

    The Supreme Court’s particular concern with racial injustice had a somewhat random effect on other areas of civil law. Roughly, the minority defendants successfully created new defenses to liability in antitrust, libel, and pornography cases, while minority plaintiffs created a new cause of action for securities fraud (Affiliated Ute– Native American plantiffs) and revolutionized procedure for class actions of all kinds. By happenstance the most significant intellectual property dispute from the Civil Rights movement involved Martin Luther King as a Plaintiff successfully securing rights to his “I Have Dream” speech despite its very wide publication prior to filing with the Copyright office, somewhat widening copyright protection for particular kinds of works.

  11. Jake Linford says:

    A.J, the Supreme Court has explicitly held in Eldred that so long as Congress does not violate the “traditional contours” of copyright law interwoven with First Amendment implications (namely, fair use and the idea/expression dichotomy), its legislative enactments are subject only to rationale basis review. One might expect the Court to treat a patent enactment less deferentially to the extent it is persuaded that statutory patent law has no built in First Amendment protections.