Document Type

Article

Publication Date

2017

Publication Information

24 Journal of Intellectual Property 277 (2017)

Abstract

When Congress enacts federal laws, it is often because of the asserted benefits of a “uniform” law and the, often unspoken, assumption that federal laws are somehow more uniform than uniform state laws. In fact, the uniformity argument was a primary justification for the enactment of both the Defend Trade Secrets Act of 2016 and the EU Trade Secret Directive.

The quest for uniformity, particularly with respect to laws that relate to intellectual property rights, is an old story in the United States. During the drafting of the U.S. Constitution, the existence of inconsistent state laws was a central reason for the enactment of the Intellectual Property Clause. The business community tends to like uniformity because, in theory, when laws are uniform they are more predictable, and when laws are more predictable, transaction costs are lowered. This is particularly true, as is the case of the Uniform Commercial Code, when uniform laws include default rules that eliminate the need for private ordering except in cases where there is a desire to change the default rules.

Unfortunately, there are numerous reasons why the uniformity of federal laws is more myth than reality, particularly with respect to the three federal intellectual property laws that preceded enactment of the DTSA: the Patent Act; the 1976 Copyright Act; and the Lanham Act. Although the existing federal patent, copyright, and trademark laws have been in existence for decades, and there is a rich body of jurisprudence under each area of law, anyone who researches these areas of law knows that the alleged uniformity is illusory on many important issues. This is not to suggest that federal laws are not needed with respect to these matters, but rather, it suggests that when adopting federal law we should not assume that uniformity will follow and, instead, should be more careful to identify the sub-issues upon which uniformity is most important.

This article begins by providing examples and explanations for the lack of uniformity in federal intellectual property law. In part two, it labels and categorizes the various uniformity problems in an effort to identify those which might be solved through better legislative processes and drafting and those that cannot be resolved in such manner. The article concludes with a discussion of related issues of federalism and the important question whether some of the issues that cannot be resolved through better legislative processes and drafting are better left in the laboratories of state courts.

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