The Intellectual Property Clause's Preemptive Effect
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Description
Federal law’s preemption of state power in the context of intellectual property (as well as more generally) remains unclear in several respects, even in the face of considerable scholarship and judicial decisions on the subject. As Arthur Miller observes, “Preemption in the intellectual property context . . . has received oscillating treatment over the years. . . . The result has been a body of law replete with internal tensions, distinctions, and ambiguities, making definite answers to many preemption questions impossible to divine.” Much of the confusion in preemption doctrine in intellectual property comes from trying to piece together the Supreme Court’s various cases in the area into a coherent analytical framework. I propose that the cases can be read consistently, with the help of the Constitution’s Intellectual Property Clause (IP Clause), which grants Congress authority “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The IP Clause can help shed analytical light on when state laws are preempted. The IP Clause is the authority pursuant to which American copyright and patent laws have been enacted. As I discuss elsewhere, it establishes the means and ends to which Congress can legislate to protect intellectual property: Congress can act with the goal of promoting progress of science and useful arts, using only the means set out therein, of securing for limited times to authors and inventors the exclusive rights to their works. I argue here that, understood through the lens of the IP Clause, state laws are preempted on satisfaction of two conditions: (1) they lie within the preemptive scope of the IP Clause, and (2) they upset the IP Clause’s balance, as effectuated by a federal law. Because the IP Clause authorizes Congress to act only for the purpose of promoting progress in science and useful arts (using the means specified), when state laws (or their enforcement) are instead structurally directed to another purpose, they generally lie outside the scope of the IP Clause and therefore outside its preemptive scope. Nonetheless, transitively, state laws that piggyback off the federal laws passed pursuant to the IP Clause lie within its preemptive scope in certain ways, even if they lack structural purpose to promote progress of science and useful arts. State laws within the IP Clause’s preemptive scope ought to be preempted when they upset the IP Clause’s balance, as instantiated by federal laws enacted pursuant to its authority. The IP Clause effectuates a balance between granting incentives to authors and inventors to create certain valuable works and promoting the public interest of having access to these works (by encouraging their creation and by ensuring that rights last only for limited times). Federal legislation enacted pursuant to this power instantiates this balance in particular ways (even when Congress does not expressly state as much). It is therefore problematic when state laws within the IP Clause’s preemptive scope upset this balance. Part I explains my understanding of the IP Clause and provides an overview of the patent and copyright laws enacted pursuant to its authority. Part II describes the Supreme Court’s preemption doctrine, focusing on its case law with respect to intellectual property. Part III turns to the IP Clause’s preemptive effect. I maintain therein that the IP Clause does not preempt state laws of its own force, yet it is helpful in making sense of Supreme Court doctrine to decipher when state laws are preempted. I argue that state laws are preempted when they both fall within the IP Clause’s preemptive scope and upset the IP Clause’s balance, as instantiated by federal law.
Source Publication
Intellectual Property and the Common Law
Source Editors/Authors
Shyamkrishna Balganesh
Publication Date
2013
Recommended Citation
Fromer, Jeanne C., "The Intellectual Property Clause's Preemptive Effect" (2013). Faculty Chapters. 643.
https://gretchen.law.nyu.edu/fac-chapt/643
