Patents and Free Speech

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. You may find some useful examples and links here:

    http://en.swpat.org/wiki/Freedom_of_expression

    That site is focussed on software patents. Some of the arguments might apply to patents as a whole, but this problem is more acute for software because of its practitioner profile.

    Firstly, software is often developed by individuals, for whom online discussion is a normal part of development. Software is also often developed by programmers spread across multiple organisations, which again encourages them to rely on public forums.

    Secondly, a large portion of software is developed by programmers who don’t have the backing of a company with the large financial and legal resources to tackle patents, so patent challenges can’t be contested and the developers are often don’t know where their patent risk ends. This causes them to be over cautious, including refusing to talk about the code in question.

    Thirdly, from a different perspective, software is needed for modern communication. I can’t skype someone without using the skype protocols, and I can’t watch a .wmv film without using the .wmv encoding algorithms. By patenting these protocols and algorithms, the patent holders gain control over key communications technologies. Because software functionality is bundled with other functionality and dependent on other software, this is much more discriminatory than patents on older communications technologies. For example, if you don’t by a copy of Microsoft Windows, you may be cut out of certain mediums of communication. Developers for other operating systems could easily write the necessary software, but patents block them for 20 years, by which time everyone will be using a newer technology with newer patents.

  2. Just to clarify my first point, freedom of speech is less of an issue for car manufacturers and other product developers who’s communication is mostly internal or in private meetings.

  3. A.J. Sutter says:

    Looking at the link that Ciaran provides, it seems that none of these issues is new. Why wouldn’t they have applied equally to the telegraph and the telephone, for example? That doesn’t mean they’re non-issues, but why raise them now? And the adverb “clearly” — as in business methods being “clearly patentable” post-Bilski — is “clearly” in the eye of the beholder. The Free Software Foundation calls the SCOTUS ruling “a victory on the path to ending software patents” that left State Street “gutted, if not technically overturned.” Or as Josh Lerner clearly and more modestly commented, the ruling “preserves a fair amount of ambiguity.”