Patents and State Constitutionally Protected Speech

17 Pages Posted: 18 Jun 2019 Last revised: 5 Aug 2019

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: June 10, 2019


Recent American patent scholarship has begun to explore the intersection of the patent system and guarantees of expressive freedom, noting that patents may impinge on the First Amendment to the federal constitution to chill or prohibit protected speech. But guarantees of expressive freedom are not limited to the federal constitution; they are also found in state constitutional provisions, some of which offer broader protection than that guaranteed in the First Amendment.

In this essay I examine the relationship between federally issued patents and the guarantees of expressive freedom found in state constitutions. State constitutions vary in their wording and interpretation, so my primary focus will be on those states that have viewed their state constitutional provisions as extending beyond the protections offered by the federal First Amendment. While the Supremacy Clause prevents states from overriding federal patent law, I argue here that state constitutional provisions can alter, shape, or even prohibit certain types of patent assertions, just as state law may moderate other uses of personal property. The discussion of this interaction highlights several previously unexplored aspects of the vertical relationship between federal patent policy and state law, and offers an alternative route to vindicating expressive rights encumbered by patents.

Keywords: speech, expression, patent, intellectual property, state constitutional law, constitutional law, free speech, freedom of expression, FRAND, SEP, Pruneyard

JEL Classification: K19, O31, O33, O34, O38, P14

Suggested Citation

Burk, Dan L., Patents and State Constitutionally Protected Speech (June 10, 2019). Duke Journal of Constitutional Law & Public Policy, Forthcoming; UC Irvine School of Law Research Paper No. 2019-39. Available at SSRN:

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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