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.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)