Why Does the ACLU Care About Patents?

As part of the Bilski case now pending before the CAFC, numerous parties have provided amicus briefs to the court relating to the questions posed in the case.  Most of these briefs have been submitted by the “usual suspects” – industry groups, the AIPLA, and the like.  However, one of the more interesting amicus briefs has been submitted by the American Civil Liberties Union (ACLU). The ACLU’s entry into the Bilski fray is predicated on the idea that Bilski involves “fundamental issues under the First Amendment” – that is, that granting the patent sought by Bilski would in effect be a violation of the freedom of speech as guaranteed by the First Amendment.  The ACLU’s rationale for this argument rests in the nature of the idea that Bilski intends to patent, which is a method of transaction between at least two parties relating to commodities pricing.  The ACLU argues that since the Bilski method is at its core a conversation between two parties to a transaction, that granting of the patent would be a restraint on free speech between the parties.

To be sure, current U.S. constitutional law makes fairly clear that the “freedom of speech” as posited by the First Amendment is not an absolute right – case law generally recognizes that “commercial” speech, as opposed to “political” speech, can be subject to any number of restrictions that are deemed reasonable by the government.  So it may well be that the ACLU’s argument in Bilski ends up being more of a quixotic adventure than anything else.  But the argument is nonetheless interesting, and perhaps demonstrates the broadening of interest in intellectual property matters for even those groups who would seem to have no obvious interest.  The brief may be found at http://www.aclu.org/pdfs/freespeech/in_re_bilski_aclu_amicus.pdf.