ACLU Introduces First Amendment Argument In Key Patent Law Case

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Patenting Abstract Ideas Violates The Constitution, Group Says

WASHINGTON – Introducing a rare argument applying the First Amendment to patent law, the American Civil Liberties Union filed a friend of the court brief today urging a federal court to uphold the denial of a patent that would, if awarded, violate freedom of speech. In the brief, the ACLU argues that Bernard L. Bilski is seeking a patent for an abstract idea, and that abstract ideas are not patentable under the First Amendment.

“The court must ensure that any test it uses in determining whether to award a patent is in line with the Constitution,” said Christopher Hansen, senior staff attorney with the ACLU First Amendment Working Group, who filed the brief. “If the government had the authority to grant exclusive rights to an idea, the fundamental purpose of the First Amendment – to protect an individual’s right to thought and expression – would be rendered meaningless.”

In 2006, Bilski sought a patent for his idea that the weather risk involved in buying and selling commodities could be minimized if sellers had conversations with two buyers instead of one. The U.S. Patent and Trademark Office denied his request and the Board of Patent Appeals and Interferences affirmed the denial. Bilski appealed that decision to the U.S. Court of Appeals for the Federal Circuit, and the court has agreed to hear the case in a single joint session in May.

“Patent law prohibits the patenting of abstract ideas, but recently the courts and the patent office have been granting patents that consist essentially of speech or thought,” said Hansen. “If the government continues to allow patents of speech or thought it risks violating the First Amendment. No one can have a monopoly on an idea or prohibit speech on a particular subject.”

The ACLU’s brief is available online here: www.aclu.org/freespeech/gen/34783lgl20080403.html