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Article
Federal Intellectual Property Law and the Economics of Preemption
Scholarly Works
  • Paul J. Heald, University of Georgia School of Law
Iowa Law Review, Vol. 76, No. 5 (July 1991), pp. 959-1010 (reprinted with permission)
Publication Date
7-1-1991
Abstract

In the Sears/Compco decisions, the United States Supreme Court established that federal patent law preempts state prohibitions on the mere copying of unpatented product configurations. After years of harsh criticism by commentators, apparent rejection by the lower courts, and allegedly inconsistent treatment by the Court itself, most had proclaimed this principle far beyond resuscitation. The Court, however, miraculously resurrected the principle in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., which unanimously reaffirmed that intentional copying often should be privileged under federal law. In so doing, the Court provided an expressly economic rationale to be used in future determinations of the proper scope of the preemptive power of federal intellectual property statutes.

The Bonito Boats Court invalidated a Florida statute that prohibited the replication of boat hulls through the use of a direct molding process. In holding the statute directly conflicted with federal patent law goals, the Court utilized economics to analyze and describe the balance of incentives and disincentives established by Congress in patent law. It then found that the Florida law frustrated the purpose of federal patent law. The Court did not authorize the use of economics to strike down state laws when they are merely inefficient. Rather, the extensive role played by economics in the opinion is mostly descriptive -- it explains how patent law is meant to work in order to allow courts to better determine when a state law prevents its intended operation. This Article examines the decision in its historical context and applies its rationale to determine whether various state unfair competition laws should suffer the same fate as the Florida antimolding statute.

Citation Information
Paul J. Heald. "Federal Intellectual Property Law and the Economics of Preemption" (1991)
Available at: http://works.bepress.com/paul_heald/19/