Volume 107
Issue 2
Jan. '18

Patents and Free Speech

Written By: Tun-Jen Chiang


There is an enormous literature on the intersection between the First Amendment and various IP regimes such as copyright and trademark. This literature typically omits patent law from the argument, reflecting an implicit assumption that patent protection poses no threat to free speech. This assumption is wrong. As this Article will explain, patents can restrict free speech just as much as copyrights and trademarks. Indeed, patents often pose an even greater threat to speech than do copyrights and trademarks: precisely because people assume that patents pose no threat to speech, patent law has developed none of the doctrinal safe-guards for free speech that copyright law and trademark law have incorporated.

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