Last April, during the Supreme Court oral in , Justice Kagan remarked, "The PTO seems very patent happy." Her comment, and the unanimous decision invalidating gene patents, clearly expressed the court's concern that the Patent Office is overstepping its authority by approving patents that thwart, rather than foster, scientific inquiry and progress.
The Supreme Court will soon re-visit whether the Patent Office has gone too far in granting exclusive rights to what should properly remain in the commons. In the next few months, it will rule in , a software patent case that completely divided the U.S. Court of Appeals for the Federal Circuit and is sparking in the tech world. Alice follows three recent decisions – with the gene patents case being the last – issued by the court reaffirming the longstanding principle that the Patent Act does not permit patents on products of nature, laws of nature, and abstract ideas. Patents on abstract ideas are especially likely to raise First Amendment problems, as the First Amendment protects freedom of speech and thought.
The case involves patents on a method for addressing the risk that one party might back out of a deal after the other one has already paid. You can read about the details of the patents here, but the steps of Alice's patented method essentially call for a third party to keep track of financial transactions between two parties and then to instruct another institution to adjust the two parties' accounts accordingly at the end of the day. It's simple enough to imagine carrying out this process using pencil and paper to add up the transactions and a phone to communicate the account adjustment, but Alice's patents claim any computer implementation of this process. That means Alice has a monopoly on any software or hardware that performs this way of using a third party to address settlement risk, even when Alice has not created the programming code or designed the computer that has this capability.
The district court invalidated Alice's patents under Section 101 of the Patent Act, concluding that Alice is seeking to patent the abstract idea of escrow. The court found that using a third party to guarantee a transaction is a basic business concept that cannot be monopolized. The fact that this was done through a computer did not give rise to an invention, because Alice did not want to patent specific software program or hardware, but any and all software and hardware that could execute the method.
When the case reached the Federal Circuit, the ten judges were split, issuing six separate opinions. The rift within the Federal Circuit is deeply problematic, as the court decides all patent appeals from across the country. Continued confusion at the Federal Circuit about whether an abstract idea can be patented will result in a plethora of patents that impede companies, researchers, and others from using fundamental intellectual concepts to create new products and services.
Today, the ACLU filed an amicus brief in Alice Corp. arguing that the prohibition on patenting abstract ideas must be enforced, because it is compelled by the Constitution. The Patent Office and courts generally have not addressed the effect of the Constitution on patent regulation. But the government's authority to issue patents, like all government action, is subject to constitutional limits. Copyright law has integrated First Amendment protections in several ways – for example, by distinguishing between ideas and expression. Disallowing patents on abstract ideas plays the same role, by protecting freedom of thought as guaranteed under the First Amendment. Because Alice's patents claim an abstract intellectual concept, they constrain and control how others can think about and build on that concept – including those developing new software. This is particularly troubling because programming code can itself be speech deserving of protection under the First Amendment.
The barriers to innovation presented by this type of patent fly in the face of the constitutional mandate, found in Article I, requiring patents to "promote the progress of science." That's why many of the major tech companies – including , Dell, Facebook, and Twitter – filed amicus briefs in the Federal Circuit arguing that Alice's patents, and others like them, stand in the way of advancement in the high-tech sector.
Patents can serve an important role as incentives for invention. But the government cannot use patent law to grant monopolies on abstract knowledge, thought, and speech without violating the Constitution. If including computer implementation in a patent automatically turns an abstract idea into an invention, then almost any idea that can be expressed in programming code could be patented and controlled. The Constitution does not allow that kind of intrusion on freedom of thought.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.