Patents and the First Amendment

67 Pages Posted: 17 Feb 2018 Last revised: 5 Nov 2018

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: February 1, 2018


Patents are intended as a means of promoting innovation through private pecuniary incentives. But the patent system has for some time been on a collision course with guarantees of expressive freedom. Surprisingly, no one has ever subjected patent doctrine to a close First Amendment analysis. In this paper I show, first, that patents clearly affect expressive freedom, second that patents are subject to legal scrutiny for their effect on expressive rights, and third that patents are not excused from scrutiny by virtue of constituting property rights or by virtue of private discretion. After examining the patent system in terms of familiar First Amendment metrics such as strict scrutiny, narrow tailoring, governmental interest, and least restrictive means, I conclude that even though many patents may survive First Amendment analysis, many will not.

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: O31, O32, O33, O34, O38, H41, H42

Suggested Citation

Burk, Dan L., Patents and the First Amendment (February 1, 2018). Washington University Law Review, Vol. 96, UC Irvine School of Law Research Paper No. 2018-07, Available at SSRN: or

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

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Irvine, CA 92697-1000
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949-824-9325 (Phone)

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