Content Discriminatory Patents: A Response to Professor Chiang

Abstract

Recent scholarship, including a new paper by TJ Chiang, has begun seriously examining the relationship between patents and the First Amendment. In this response to Professor Chiang’s paper, I expand on my previous work in this area to consider the question of content discrimination in the patent system. This jurisprudential metric plays a pivotal role in setting the standards for First Amendment judicial review of governmental regulation, demarcating the boundary between strict scrutiny of state action and more permissive forms of judicial scrutiny. By tracing recent trends in the Supreme Court’s content discrimination jurisprudence, I argue that strict scrutiny of expressive patents may occur more often than either Professor Chiang or I have previously suggested. In particular, the Supreme Court’s trend toward expansion of heightened scrutiny, together with its curtailment of information-oriented regulation via the First Amendment, indicates that the frequency and severity of conflicts between patent law and the First Amendment may be dramatically increased.

Keywords: patent, intellectual property, speech, expression, free speech, First Amendment, constitutional law, public law, strict scrutiny, narrow tailoring, compelling interest, least restrictive means, state action, overbreadth

JEL Classification: K19, H41, O31, O34