WHAT DO SOFTWARE PATENTS AND ‘CHINATOWN DANCE ROCK’ HAVE IN COMMON? FREE SPEECH

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Software patents are often attacked as too abstract and vague. But do they threaten free speech?

That’s the view of one Federal Circuit judge as expressed in a concurring opinion in Intellectual Ventures I LLC v. Symantec Corp.

Judge Haldane Robert Mayer says patents are government-sanctioned monopolies that can run afoul of the First Amendment when they obstruct channels of communication and discourse. For instance, the patents in this case relate to virus scanning and email sorting and could potentially cover and disrupt many aspects of online communications, he said.

What’s more, vague claims can further expand patents’ reach, Mayer warned. These monopolies, granted by the Patent and Trademark Office, give patent owners the power to “balkanize” the internet and “exact heavy taxes on widely-used conduits for online expression,” Mayer said. The taxes are in the form of fees paid to license patents in online communications.

Even such “indirect burdens” on speech can weigh on the First Amendment, said Mayer, citing to a Federal Circuit decision in another case involving free speech and intellectual property, In re Tam.

In Tam, the court ruled in favor of the Asian-American “Chinatown dance rock” band The Slants that U.S. law banning the registration of disparaging trademarks is unconstitutional.

And that argument isn’t going away.

Last week, the Supreme Court agreed to hear Tam after being petitioned by the PTO, which wants the Federal Circuit’s decision overturned.

Tam has highlighted the broader discussion of how intellectual property and free speech intersect. Given Mayer’s remarks, maybe that’s something software patent practitioners should keep in mind.