Patents and the First Amendment

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. Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse

Leverage: Review of Burk & Lemley, \u27The Patent Crisis and How the Courts Can Solve It\u27

Dan L. Burk and Mark A. Lemley’s “The Patent Crisis and How the Courts Can Solve It” (The University of Chicago Press, 2009) is valuable for anyone interested in patent law. The book serves two goals. First, it suggests how patent reform in the United States can best be accomplished: not through Congressional amendment of the patent statute, but by judicial implementation of industry-specific reforms, in interpreting the existing act. Some jurisdictions, such as India, already differentiate between industrial sectors more explicitly in patent policy than the United States. Second, of interest to patent law worldwide, the book provides a clear and concise explanation of the many applications of economics to patent law and theory over the past few decades, especially with respect to how the diverse forms in innovation in different industries are reflected in patent economics, and could bolster patent reform

From Deepsouth to the Great White North: The Extraterritorial Reach of United States Patent Law After Research in Motion

In the Internet age, complex telecommunications systems are often deployed with little regard for international borders. In NTP, Inc. v. Research in Motion, Ltd., the Federal Circuit determined that one such system infringed several U.S. patents, despite the fact that an essential element of the system was located outside the territorial United States. This iBrief argues that the Federal Circuit erred in invoking the control and beneficial use test, which it culled from the very few prior cases addressing extraterritorial application of U.S. patent law. In doing so, the court disregarded the Supreme Court\u27s direction in Deepsouth Packing Co. v. Laitram Corp. that the United States\u27 patent laws make no claim to extraterritorial effect

Introduction

As a leader in the publication of legal scholarship, the Fordham Intellectual Property, Media and Entertainment Law Journal sought the insights of internationally renowned scholars on critical problems in intellectual property law. In this focused issue, five top scholars tackle timely questions

Cyberspace As/And Space

The appropriate role of place- and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested. This essay seeks to provoke critical reflection on the implications of place- and space-based theories of cyberspace for the ongoing production of networked space more generally. It argues, first, that adherents of the cyberspace metaphor have been insufficiently sensitive to the ways in which theories of cyberspace as space themselves function as acts of social construction. Specifically, the leading theories all have deployed the metaphoric construct of cyberspace to situate cyberspace, explicitly or implicitly, as separate space. This denies all of the ways in which cyberspace operates as both extension and evolution of everyday spatial practice. Next, it argues that critics of the cyberspace metaphor have confused two senses of space and two senses of metaphor. The cyberspace metaphor does not refer to abstract, Cartesian space, but instead expresses an experienced spatiality mediated by embodied human cognition. Cyberspace in this sense is relative, mutable, and constituted via the interactions among practice, conceptualization, and representation. The insights drawn from this exercise suggest a very different way of understanding both the spatiality of cyberspace and its architectural and regulatory challenges. In particular, they suggest closer attention to three ongoing shifts: the emergence of a new sense of social space, which the author calls networked space; the interpenetration of embodied, formerly bounded space by networked space; and the ways in which these developments alter, instantiate, and disrupt geographies of power

Diversity Levers

Patent law is capable of prompting innovation across a wide range of technologies by virtue of flexible “policy levers” that allow patent standards to be calibrated to the impediments that characterize different economic sectors. But it has become increasingly clear that social bias also raises significant barriers to successful creativity and innovation. In this essay I argue that the same policy levers used to address economic impediments to innovation can also be used to address other social impediments to innovation. I offer as a detailed example one possible doctrinal response to the well-documented gender gap in patentable innovation. I conclude by suggesting that such doctrinal “diversity levers” are available to address innovation deficits among other underrepresented innovators, but that considerable work remains to identify when and where such intervention might be effective