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The realm of intellectual property law now changes at an incredible pace, with the courts discarding venerable concepts rapidly. This is not surprising as the transition from a goods-based society to one based on information increases the importance of intellectual property law. Nowhere has this been more apparent than the Federal Circuit’s recent reworking of the scope of federal patent law. Today, it is difficult to imagine anything for which a patent cannot be sought and received. Furthermore, the expansion of the patent law’s scope has a corresponding impact on state powers. Because the patent law serves to implicitly preempt inconsistent state intellectual property protections, if patent law is expanded, state protection shrinks.

This Article, in two parts, examines the expansion of the patent laws and the consequential preemptive limitations on state power. Part I will explain how recent Federal Circuit cases have expanded the types of inventions that can be protected under the patent laws. Then, Part II, will discuss the adverse impacts this expansion will have on state intellectual property law using a mass-marketed computer program as the principal example.


Originally published by Temple Law Review in 2000.