Patenting Speech

64 Pages Posted: 25 May 2000 Last revised: 3 Oct 2015

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: 2000


Recent court cases regarding the regulation of computer software have held that such code may be protected expression under the First Amendment. Some courts have drawn on the law of copyright to conclude that because copyright protects expression, and software is copyrightable, that software must contain protected expression. But because of the recent expansion of patent doctrine to encompass software and other digital communications, it appears that such "speech" will also be patentable. Patent law is even more poorly equipped than copyright to distinguish function from expression. The paper reviews the likely problems inherent in applying patent law to expressive subject matter, and suggests the doctrinal changes that may be required to accommodate First Amendment interests in patentable speech.

Keywords: software, patents, First Amendment, speech, expression, communication, fair use, copyright, encryption

JEL Classification: K1, K3, O31, O32, O33, O34, L86

Suggested Citation

Burk, Dan L., Patenting Speech (2000). Texas Law Review, Vol. 79, 2000, Available at SSRN: or

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

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