In the early 1970s it was thought that states could regulate in the areas of trade secrets without interfering with federal patent policies. However, this concept was called into question in the Sixth Circuit's ruling in Kewanee Oil Co. v. Bicron. In 1974 the Supreme Court ruled that Ohio's trade secret law was not preempted by federal patent law. This article revisits the issues raised in Kewanee in light of the Supreme Court's current preemption jurisprudence, changes in patent law, copyright law, and trade secret law since that time. First, the article reviews the history and context of the Kewanee decision. Second, the article discusses and summarizes the Supreme Court and court of appeals cases that set the stage for Kewanee. Third, the article discusses the reasoning behind the Kewanee decision and the legal and factual assumptions upon which it is based. Forth, the article details the key changes that have been made to patent, copyright, and trade secret law since 1974. Fifth, the article explores whether, because of the changes since 1974, the Kewanee preemption analysis has withstood the test of time. Finally, the article concludes by proposing a simplified analysis for what is termed IP preemption to apply to all state laws that appear to protect content falling within the federal patent or copyright laws.
Sharon K. Sandeen,
Kewanee Revisited: Returning To First Principles of Intellectual Property Law to Determine the Issue of Federal Preemption,
12 Marq. Intellectual Property L. Rev. 299
Available at: https://scholarship.law.marquette.edu/iplr/vol12/iss2/3