Patent exhaustion as a canon of expressive freedom
Dan L. Burk · Edward Elgar Publishing eBooks · 2023
Although they are ostensibly directed only to utilitarian subject matter, patents regulate and impact freedom of expression. They may inhibit uses of technical conduits of communication, of methods of expression, or of expressive computer code. Consequently, patents constitute state-sponsored regulation of privately held communicative property. Moreover, unlike copyright, patent law entails few privileges or exemptions that might mediate the conflict between exclusive intellectual property rights and constitutional guarantees of expressive freedom. However, in the United States, recent Supreme Court cases dealing with exhaustion of patents may provide a vehicle for mediating this conflict. Exhaustion truncates the exclusive rights of a patent holder upon the authorized sale of a patented device. The Supreme Court has extended this doctrine to devices that implement patented processes, and to the exclusive right to use the claimed invention. This expansive view of exhaustion provides a potential buffer between patent rights and the US First Amendment.