The Intellectual Property Clause's Preemptive Effect

Abstract

Federal law’s preemption of state power in the context of intellectual property remains unclear in several respects. 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 “To 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 is the authority pursuant to which American copyright and patent laws were enacted. This clause 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 herein that understood through the lens of the IP Clause, state laws are preempted upon 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.

Keywords: preemption, intellectual property, IP, patent, copyright, IP Clause, Bonito Boats