By Dennis Crouch
As we move into 2015, the presidential campaign season will begin again in earnest. As part of that process, it is always interesting (for IP attorneys) to see candidate views on intellectual property law. The standard approach is for candidates to say something akin to: IP rights are a fundamental aspect of our innovation economy but, patent trolls are bad and we should be careful to avoid an overzealous system that would allow IP rights to hinder the market or further innovations.
Potential candidate Hillary Clinton has made the first move showing her cards – sending a cease and desist letter to the “libertymaniacs” for violation of the campaign’s IP rights. The offending copy is shown below as is its clearly copied-from source. At this point, it is unclear whether Clinton is claiming copyright infringement, trademark infringement, or some other IP rights violation.
In general, this action falls within the category of using intellectual property rights to chill speech. It is fairly rarely for patent rights to be asserted in this category, although the ACLU argued in Myriad (at the district court) that speech rights included the right to conduct a scientific inquiry and that any patent rights impinging upon that right should be seen as invalid. The STEM-related speech concern is more relevant when focused on trade secrets and confidentiality requirements. The more applicable “fundamental rights” concern associated with patents is likely to be tied up with basic freedoms that could loosely be termed ‘privacy rights’ that should allow individuals to tinker and study without creating the potential for liability.