Professor Buzz Scherr recently chaired a retreat for the American Civil Liberties Union's Patents and Civil Liberties Committee.  Professor Scherr is the chair of the committee and the New Hampshire representative to the ACLU's Board of Directors. Other members of the Committee include three more current or former ACLU Board members, a patent law professor, a genetics and law professor, the ACLU's science advisor, and a senior staff lawyer. 

Some readers may be thinking: copyrights and trademarks can raise First Amendment concerns, but what do patents have to do with civil liberties? There are significant free speech, equal protection, and privacy issues raised by the way certain patents have been used or could potentially be used. Because patents give the owner the right to exclude others from making or using the patented invention, even in a non-commercial sense, any patent can be used to suppress scientific inquiry during its lifetime. Some patents create further issues.

For example, the use of the heart drug Bidil specifically on African-Americans is patented, which brings up a possibility of discrimination. However, not everyone believes tailoring drugs to demographic groups is discriminatory. Some have welcomed it as a change from the more traditional focus on developing medicine with only the needs of Caucasian men in mind. 

In Laboratory Corp. v. Metabolite Laboratories, free speech concerns were raised by a patent on the correlation between an amino acid called homocysteine in the blood and a vitamin B deficiency. Under the patent owned by Metabolite, doctors could be liable for patent infringement just for making use of the correlation in their treatment decisions. 

 Other thorny questions about patents and civil liberties include the creation of transgenic creatures which have human genes. The Patent and Trademark Office has stated that it will not patent any "invention" which is human, but the threshold for being human is unclear, and a patent on a too-human invention would amount to slavery. Genetic databases, human experiments, and organ donation are also areas the Committee is keeping track of. The ACLU takes 2-3 years to form an official position on an issue, and has not yet reached a position on any of the questions being examined by the Patents and Civil Liberties Committee.