Mozilla and Stanford Law Panel: What Role Does the First Amendment Have in Patent Law?

By Robert R. Sachs

On April 17, Mozilla and Stanford Law held a panel to discuss the role of the First Amendment in the patent law, and specifically the impact on the patent eligibility of software and genes sequences.

Joining me on the panel were Dan Burk, a professor at the UC Irvine School of Law; Sandra Park, senior staff attorney at the ACLU Women’s Rights Project; and Wendy Seltzer, strategy lead and policy counsel at the World Wide Web Consortium, as well as moderator Elvin Lee, Mozilla’s Product and Commercial Counsel.

We discussed how IP law and the First Amendment intersect in IP disputes, eligibility tests, and the balance of interests between patent holders and users.

The debate over the First Amendment and boundaries of patent protection became a hot topic for discussion after Circuit Judge Haldane Mayer issued his 2016 opinion in Intellectual Ventures I LLC v. Symantec Corporation.

We discussed and debated both sides, and also talked about topics such as whether patent law creates conflicts with the First Amendment and whether subject-matter eligibility tests created by the Supreme Court (e.g., Alice) mitigate or impact any potential First Amendment issues. We also explored how the First Amendment's intersection with patent law compares to other IP and regulatory contexts and the different competing interests for IP owners and creators.