The Expressive Impact of Patents

Patents represent a quid pro quo between the public and the inventor: in exchange for disclosing the invention, the inventor receives the right to exclude others from practicing her invention. They therefore serve as a source of technical information. Patents also communicate information to markets and companies that serve to reduce various transaction costs, allowing more efficient transactions and investment. Patents consequently communicate various types of information beyond the technical. There is no reason, however, that such messages must be limited to the technical or the pecuniary. This Article explores whether patents, like other governmental acts such as legislation, can create expressive harms. The grant of a patent could communicate a message of inferiority to groups whose identity is tied to their biology. The article analyzes this potential through the paradigm of granting patents on a “gay gene” or other biological process that predisposes a person toward a homosexual orientation. Other conditions implicated by my thesis are the deaf, dwarfs, and high-functioning autistics. These groups do not regard themselves as pathological or in need of “curing,” yet genetic discoveries offer the potential for their elimination through what is effectively privatized eugenics. The grant of a patent on such technologies affords the government’s imprimatur of such controversial technologies. The Article first reviews the scientific status of homosexuality. It then explores whether patents regarding sexual orientation could be a moral signal of inferiority by the government by suggesting that gays and lesbians are pathological. Finally, the Article offers various prescriptions to address this problem. ∗ Associate Professor of Law and Associate Director of the Program in Intellectual Property Law, Chicago-Kent College of Law. My thanks for helpful comments and sources to Graeme Dinwoodie, Rochelle Dreyfuss, Brett Frischman, Sarah Harding, Cynthia Ho, Namon Huddleston, Christopher Leslie, Janice Mueller, Arti Rai, Katherine Strandburg, and participants at workshops at the Chicago-Kent College of Law; the University of Cincinnati College of Law; the University of San Francisco School of Law; the University of Illinois at Chicago Forum for Research on Law, Politics, and the Humanities; Washington University School of Law in St. Louis; the DePaul College of Law; and the University of Houston Law Center. Able research assistance was provided by Veana Clay. This Article was funded in part by grant #DE-FG02-02ER63460, from the Office of Biological and Environmental Research, the Office of Science, U.S. Department of Energy (DOE), and The Robert Wood Johnson Foundation Investigator Awards in Health Policy Research Program, with Lori Andrews and Laurie Rosenow as co-investigators. Washington University Open Scholarship p573 Holbrook book pages.doc4/30/2007 574 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 84:573