This piece explores the largely unexamined relationship between patent law and the First Amendment. It focuses on patents on so-called “research tools”—technological products and processes that comprise vital inputs to basic scientific experimentation. Recent patent scholarship suggests that these patents may inhibit scientific inquiry, as they prevent scientists from accessing foundational technologies necessary to conduct basic research. Applying prevailing theories of the First Amendment, I argue that government-granted exclusive rights on these foundational technologies violate well-established free speech principles. Research tools patents impoverish the marketplace of ideas, undermine “scientific expression,” compromise the communal norms of the scientific community, and hinder scientists’ ability to check epistemological authority—all of which implicate traditional concerns of First Amendment jurisprudence. The piece concludes with a prescription for courts to apply First Amendment analysis in patent infringement cases, providing a safe harbor from infringement when enforcement of a patent would silence valuable scientific speech.
- patent law,
- First Amendment,
- research tools
Available at: http://works.bepress.com/peter_lee/4/