The Reemergence of State Anti-Patent Law

Abstract

The majority of states have now passed laws prohibiting bad faith assertions of patent infringement. The laws are heralded as a new tool to protect small businesses and consumers from harassment by so-called patent trolls. But state anti-patent laws — laws that weaken patents or make them substantially more difficult to sell or enforce — are not a new phenomenon. In the late nineteenth century, states passed a variety of regulations to prevent fraud by patentees who aggressively marketed fake or low value patents. However, courts initially found the laws were unconstitutional in light of the Intellectual Property Clause, which gives Congress power to “secur[e]” inventors’ “exclusive right[s]” and prevents states from placing an “oppressive or unreasonable” burden on those rights. The Federal Circuit has completely ignored the Intellectual Property Clause’s preemptive effect on state anti-patent laws, instead relying on conflict preemption under the Patent Act, and an expansive reading of the First Amendment’s Petition Clause. This article argues that the Federal Circuit should abandon its current hybrid approach and return to the historic rule, which recognizes that the true limit on states’ power to regulate patents is the Intellectual Property Clause itself.