ACLU: Patenting Abstract Ideas Violates First Amendment

April 8, 2008 by Dan Hartrell

Christopher Hansen, an attorney with the American Civil Liberties Union, has become involved in a patent case for an “abstract idea”. The patent in dispute belongs to Bernard L. Bilski:

“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.“

The ACLU is concerned that granting ownership of an abstract idea would violate the right to free speech under the American Bill of Rights:

“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 scope of patentable subject matter continues to be controversial around the world. In Canada, there have been recent disputes over the patentability of computer algorithms and higher life forms. This represents another key battleground, although concerns about the effect of intellectual property on free expression are not new. As the scope of patentable subject matter grows more abstract, the conflict between intellectual property and free speech will only intensify.

A link to the ACLU’s brief is here. (in .pdf format)